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Phipps v Australian Leisure and Hospitality Group Ltd[2007] QCA 130

Reported at [2007] 2 Qd R 555

Phipps v Australian Leisure and Hospitality Group Ltd[2007] QCA 130

Reported at [2007] 2 Qd R 555
 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Phipps v Australian Leisure and Hospitality Group Ltd & Anor [2007] QCA 130

PARTIES:

MARGO JOY PHIPPS
(applicant/appellant)
v
AUSTRALIAN LEISURE AND HOSPITALITY GROUP LIMITED ACN 067 391 511
(first respondent)
&
WOOLWORTHS LTD ACN 000 014 675
(second respondent)

FILE NO/S:

Appeal No 9841 of 2006

SC No 430 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

20 April 2007

DELIVERED AT:

Brisbane

HEARING DATE:

22 March 2007

JUDGES:

Keane JA, Muir and Philip McMurdo JJ

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

ORDER:

  1. Appeal allowed 
  2. Set aside the orders made by the primary judge for dismissal of the proceedings and for costs
  3. Respondents pay the appellant’s costs of the appeal and of their application made to the primary judge

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – JURISDICTION AND GENERALLY – GENERALLY – where workers’ compensation statute provides that claimants cannot seek damages without attaining a notice of assessment – where proceedings brought in non-compliance with that statute – whether court proceedings are a ity – whether court proceedings should be struck out as an abuse of process

WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – DETERMINATION OF CLAIMS – PROCEDURE – PROCEDURE BEFORE HEARING – where claimant suffered injury at work – where statute requires that a claimant receive a notice of assessment in order to seek damages – where claimant had not received a notice of assessment before bringing claim – where claimant had not received a notice of assessment at time of cross-application to strike out proceedings – where fresh proceedings would be statute barred – where statute provides machinery to prospectively seek an extension of time – where claimant did not seek an extension of time – whether failure to comply with pre-court procedure is an absolute bar to relief claimed – whether proceedings are a ity – whether proceedings should be struck out as an abuse of process – whether requirement of a notice of assessment affects substantive right of action.

Uniform Civil Procedure Rules 1999 (Qld), r 375

Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 237, s 250, s 275, s 298

Austral Pacific Group Limited (In Liquidation) v Airservices Australia (2000) 203 CLR 136; [2000] HCA 39, discussed

Australia Meat Holdings Pty Ltd v Hamling [2006] QCA 422; Appeal No 3692 of 2006, 27 October 2006, applied

Berowra Holdings Pty Ltd v Gordon [2006] 228 ALR 387; [2006] HCA 32,  applied

Bonser v Melnacis, [2002] 1 Qd R 1; [2000] QCA 13, discussed

Brighton Und Refern Plaster Pty Ltd v Boardman [2006] 228 ALR 374; [2006] HCA 33, applied

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25, considered

Gordon v Berowra Holdings Pty Ltd (2005) 62 NSWLR 427; [2005] NSWCA 27, considered

Phipps v Australian Leisure & Hospitality Group Ltd and Woolworths Ltd [2006] QSC 327, not followed

Roberts v Australia and New Zealand Banking Group Ltd [2006] 1 Qd R 482; [2005] QCA 470, not followed

Stone v ACE-IRM Insurance Broking Pty Ltd [2004] 1 Qd R 173; [2003] QCA 218, considered

Tanks v WorkCover Queensland [2001] QCA 103, Appeal No 9435 of 2000, 20 March 2001, discussed

COUNSEL:

D McMeekin SC, with B Harrison, for the appellant

R J Douglas SC for the respondents

SOLICITORS:

J Hamilton & Associates for the appellant

DLA Phillips Fox the respondents

  1. KEANE JA: I have read the reasons for judgment of Philip McMurdo J, and gratefully adopt his Honour's summary of the factual and procedural background to the present appeal.  I also agree with the orders proposed by his Honour.  I am in substantial agreement with his Honour's reasons, save that I consider that it should be accepted that the provisions of Pt 5 of Ch 5 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) ("the Act") do affect the substance of a claimant's right of action and not merely the availability of a remedy to vindicate that right. 
  1. It is necessary for me to refer at some length to the relevant provisions of the Act before expressing my own reasons for concluding that the appeal should be allowed.

The statutory and factual background

  1. The Act regulates access to damages by an employee injured in the course of his or her employment. Its provisions assume the existence of a right of action in the employee which has arisen independently of the Act. Section 235 to s 237 and s 249 to s 252 provide relevantly as follows:

"235 Requirements of chapter to prevail and are substantive law

(1)If a provision of an Act or a rule of law is inconsistent with this chapter, this chapter prevails.

(2) All the provisions of this chapter are provisions of substantive law.

(3) However, subsection (2) does not affect minor variations in procedure.

236 Period of limitation under Limitation of Actions Act 1974 never affected

(1)It is declared that nothing in this Act affects, or has ever affected, the commencement of the period of limitation provided by the Limitation of Actions Act 1974, section 11.

(2)To remove any doubt, it is declared that the period of

limitation provided by the Limitation of Actions Act 1974, section 11 applicable to an action for damages for injury sustained by a worker in circumstances creating, independently of this Act, a legal liability in the worker’s employer to pay the damages for the injury is, and always has been, the same as would have been applicable to that action if this Act had not been enacted.

(3) This section is subject to section 302.

…

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

…

(2)The entitlement of a worker, or a dependant of a deceased worker, to seek damages is subject to the provisions of this chapter.

…

(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.

…

  1. Application of div 4

This division applies to a claimant who is a person mentioned in section 237(1)(b).

  1. 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.

  1. Need for urgent proceedings

(1)This section applies in relation to an urgent need for the claimant to start a proceeding for damages.

(2)Section 276 provides a way for the claimant to satisfy section 302(1)(a)(ii).

(3)Also, the claimant may, under section 298, seek leave to start a proceeding for damages for an injury without complying with section 295.

(4)However, if the leave mentioned in subsection (3) is given, the proceeding started by leave is stayed
until –

(a)the insurer gives the claimant a notice of assessment; and

(b)the claimant –

(i)elects to seek damages for the injury; and

(ii)complies with section 295.

  1. When urgent proceeding must be discontinued

(1)This section applies if a claimant has started a proceeding mentioned in section 251(4).

(2)The claimant must discontinue the proceeding if the claimant –

(a)is required under section 239 to make an election to seek damages for the injury; and

(b)accepts an offer of payment of lump sum compensation under chapter 3, part 10, division 3 for the injury."

  1. The appellant had not received a notice of assessment in respect of the injury of 14 July 2003 when her action was commenced on 24 May 2004. Thus, the appellant had not, at the time her action was struck out, complied with s 237(1)(a) and s 250 of the Act. The evidence shows, however, that a notice of assessment is likely to be issued soon. Precisely when it will issue is, of course, a matter entirely outside the appellant's control.
  1. The appellant also did not comply with the requirements of s 275 of the Act. That section provides:

"275Notice of claim for damages

(1)Before starting a proceeding in a court for damages, a claimant must give notice under this section within the period of limitation for bringing a proceeding for the damages under the Limitation of Actions Act 1974.

(2)The claimant must -

(a) give the notice of claim in the approved form to the insurer at the insurer’s registered office; and

(b) if the worker’s employer is not a self-insurer, give a copy of the notice of claim to the worker’s employer.

(3)The notice must include the particulars prescribed under a regulation.

(4)The claimant must state in the notice -

(a) whether, and to what extent, liability expressed as a percentage is admitted for the injury; or

(b) a statement of the reasons why the claimant can no admit liability.

(5)Any statement made by the claimant in the notice that is in the claimant’s personal knowledge must be verified by statutory declaration.

…"

  1. The appellant did not comply with s 275 of the Act; nor did she obtain a waiver from WorkCover of her non-compliance with s 275 of the Act. Such a waiver might have been sought under s 276 of the Act. That section provides relevantly as follows:

"276 Noncompliance with s 275 and urgent proceedings

(1)The purpose of this section is to enable a claimant to avoid the need to bring an application under section 298.

(2)Without limiting section 297 or 298, if the claimant alleges an urgent need to start a proceeding for damages despite noncompliance with section 275, the claimant must, in the claimant’s notice of claim -

(a) state the reasons for the urgency and the need to start the proceeding; and

(b) ask the insurer to waive compliance with the requirements of section 275.

(3)The claimant’s lawyer may sign the notice of claim on the claimant’s behalf if it is not reasonably practicable for the claimant to do so.

(4)The claimant’s notice of claim may be given by fax in the way provided for under a regulation.

(5)The insurer must, before the end of 3 business days after receiving the notice of claim, advise the claimant that the insurer agrees or does not agree that there is an urgent need to start a proceeding for damages.

(6)If the insurer agrees that there is an urgent need to start a proceeding for damages, the insurer may, in the advice to the claimant under subsection (5), impose the conditions the insurer considers necessary or appropriate to satisfy the insurer to waive compliance under section 278(2)(b).

(7)The claimant must comply with the conditions within a reasonable time that is agreed between the insurer and the claimant.

(8)The claimant’s agreement to comply with the conditions is taken to satisfy section 302(1)(a)(ii)."

  1. The appellant ultimately attempted to avail herself of the provisions of s 298 of the Act, whereby she might have commenced her action notwithstanding her non‑compliance with s 275 of the Act.  Section 294 to s 298 are material in this regard.  They are in the following terms:

"294 Application of div 1

This division states the conditions that must be satisfied before a claimant can start a court proceeding.

295 Compliance necessary before starting proceeding

The claimant may start a proceeding in a court for damages only if the claimant has complied with -

(a)the relevant division under part 2, to the extent the division imposes a requirement on the person; and

(b)part 5, other than as provided by sections 297 and 298; and

(c)part 6; and

(d)section 296.

296 Claimant to have given complying notice of claim or insurer to have waived compliance

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

(a) at least 6 months or, for a terminal condition, 3 months have elapsed after -

(i) the claimant has given, or is taken to have given, a complying notice of claim; or

(ii) the insurer has waived the claimant’s noncompliance with the requirements of section 275 with or without conditions; or

(iii) the court has made an order under section 297 or 298;

(b) the insurer has admitted liability, but is claiming contributory liability from the claimant, or another party, and the claimant has given the insurer written notice that the extent of the admission is disputed;

(c) the insurer has admitted liability but damages can not be agreed.

297 Court to have made declaration about noncompliance

(1) Subject to section 296, the claimant may start the proceeding if the court, on application by the claimant dissatisfied with the insurer’s response under section 278 to a notice of claim, declares that -

(a) notice of claim has been given under section 275; or

(b) the claimant is taken to have remedied non-compliance with the requirements of section 275.

(2) A declaration that a claimant is taken to have remedied noncompliance with section 275 may be made on conditions the court considers necessary or appropriate to minimise prejudice to the insurer from the claimant’s failure to comply with the requirements of section 275.

298 Court to have given leave despite noncompliance

(1) Subject to section 296, 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 275.

(2) The order giving leave to bring the proceeding may be made on conditions the court considers necessary or appropriate to minimise prejudice to the insurer from the claimant’s failure to comply with the requirements of section 275."

  1. Section 302 of the Act provides for the alteration of the period of limitation which might otherwise adversely affect a claimant who is obliged to take time to conform to the requirements of the Act. It provides relevantly:

"(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, or is taken to have given, a complying notice of claim; or

(ii) the claimant gives a notice of claim for which the insurer waives compliance with the requirements of section 275 with or without conditions; or

(iii) a court makes a declaration under section 297; or

(iv) a court gives leave under section 298; and

  1. the claimant complies with section 295.

(2) However, the proceeding must be brought within 60 days after a compulsory conference for the claim is held."

The arguments on appeal

  1. The appellant's argument takes as its starting point the decision of the High Court of Australia in Berowra Holdings Pty Ltd v Gordon.[1]  In that case, the plaintiff brought proceedings claiming damages for personal injury.  The proceedings were brought in breach of s 151C of the Workers Compensation Act 1987 (NSW).  That provision provided relevantly that the plaintiff was "not entitled to commence court proceedings for damages in respect of the injury concerned" until the expiration of a prescribed period of notice of the injury to the employer.  The defendant employer contended that the proceedings commenced by the employee were "invalid" or a " ity". 
  1. That contention was rejected by the High Court in reasons which emphasised that a true understanding of "the effect of non-compliance" with s 151C "requires close attention to the words of the statute and the statutory scheme in general". After a consideration of the applicable statutory language, Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ said:

"Section 151C should not be read as if the entitlement of a plaintiff to commence court proceedings after the passage of six months from the giving to the employer of notice of the injury was a pre-condition to the jurisdiction conferred upon the court to determine claims for work injury damages. The considerations adverted to earlier in these reasons all point against the employer’s construction of s 151C.

     The better view is that the provision does not inevitably result in the invalidity of proceedings commenced in contravention of it, either for want of the court’s jurisdiction or because the court has no jurisdiction except to accede to a defendant’s application (whenever brought) to set aside the proceedings and to do so without regard to the procedural history and the relevant Rules of Court.

     The construction advanced by counsel for the worker should be accepted. Section 151C does not extinguish rights or create new rights. Rather, it postpones the remedy for the common law right to initiate proceedings in a court of competent jurisdiction. The 'right' which s 151C does confer is conferred upon the defendant employer and must be raised in accordance with the procedural rules appurtenant to the particular court. 

     Proceedings commenced by a worker in contravention of s 151C engage the jurisdiction and procedural rules of the court in question. Such proceedings are vulnerable to an application by the defendant to strike out the initiating process or to move for summary dismissal, but they are not a ' ity'. Once a plaintiff has commenced proceedings, s 151C must be understood in connection with the procedural structure for the conduct of litigation in that court, not in isolation from it. This is not to subjugate the statute to the Rules, but to recognise that the subject-matter with which the statute deals is 'rights' in the context of actual or apprehended litigation, and to understand the function of the Rules of Court and procedural law in facilitating adjudication of disputed claims.

     The upshot is that the effect of non-compliance with s 151C will depend in each case upon the actions of the defendant in the context of the relevant Rules of Court. Where the defendant requires an order by the court for the defendant to give effect to a point as to s 151C, in exercising its discretion the court will take into account numerous factors. Not all of these (as Lord Griffiths recognised in Ketteman v Hansel Properties) ([1987] AC 189 at 220) may be measured in economic terms."[2]

  1. The appellant also relies, in particular, upon the decision of this Court in Hamling v Australia Meat Holdings Pty Ltd (No 2)[3] which was delivered after the decision of the learned primary judge.  Hamling's Case concerned the provisions of the WorkCover Queensland Act 1996 (Qld) analogous to the provisions of the Act of present concern.  Jerrard JA, with whom Holmes JA and Mackenzie J agreed, said:

"It was common ground between the parties on this appeal that the recent decisions of the High Court in Brighton Und Refern Plaster Pty Ltd v Boardman (2006) 225 CLR 402 and Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364, while involving consideration of different legislation, express principles and matters relevant in construing the Act and in determining the strike out application. Those matters include that s 303 does not inevitably result in the invalidity of proceedings commenced in contravention of it, because the section does not extinguish rights or create new ones. Rather it postpones the remedy for the common law right to initiate proceedings in a court of competent jurisdiction. Proceedings commenced in contravention of s 303 do engage the jurisdiction and procedural rules of the court. Such proceedings are vulnerable to an application by a defendant to strike out the initiating process or to move for summary dismissal (See Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364 at 376-377 (joint judgment of Gleeson CJ, Gummow, Hayne, Heydon, and Crennan JJ)). Those conclusions reached in Berowra Holdings v Gordon apply here because, while the Act describes in s 253 the only persons entitled to seek damages for an injury sustained by a worker (See Watkin v GRM International Pty Ltd [2007] 1 Qd R 389, where this Court recently considered the proper construction of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) and its earlier decisions on the Act, and repeated that a provision similar to s 253 in the latter Act exhaustively described those people who might seek common law damages), the basis of the liability sought to be enforced is principally sourced in common law duties of care. What the Act does is regulate, rigidly, the procedures by which damages can be claimed for breach of those duties. That makes the statements in Berowra Holdings v Gordon applicable.

     Another and quite different matter clarified in the joint judgment in Berowra Holdings v Gordon was that, for the trial judge to embark on a consideration of what was involved in the strike out application by considering whether there was a 'waiver' by the employer of its rights, was an unproductive exercise. Once it was appreciated that the District Court had jurisdiction and that its procedural rules had been engaged, concepts such as waiver, acquiescence and estoppel, were confusing and imprecise (See Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364).

     The judgments in Berowra Holdings v Gordon and Brighton v Boardman emphasise the discretionary power vested in a court hearing an application by a party for the exercise in its favour of a power of a court, including a strike out power, and remark that numerous (See Brighton Und Refern Plaster Pty Ltd v Boardman (2006) 225 CLR 402 at 407 of the joint judgment) and many different (See Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364 at 377) factors will be relevant to that discretionary decision. Matters relevant to the determination of the strike out application, adverse to this claimant, would include that he did contravene s 303 by filing his claim and thereby starting the proceeding against the employer, when at least six months had not elapsed after either waiver of his obligation to comply with s 280 or the court making an order under s 305."[4]

  1. In Hamling's Case, the claimant, after a number of bungled attempts, ultimately complied with the procedural requirements of the then equivalent s 275 of the Act.  In these circumstances, this Court upheld the argument that the action should be allowed to proceed to judgment notwithstanding it had been commenced contrary to the prohibition upon the commencement of an action before the notice of claim had been given.  The basis for this view was this Court's acceptance of the proposition that the question whether the action should be terminated because of non-compliance with the prohibition on commencement of proceedings was a matter for resolution by the exercise of the judicial discretion to terminate proceedings.  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.
  1. 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 " ity", and bound to be terminated summarily as such, simply because it was commenced contrary to the statutory prohibition in s 275 of the Act.  That is the clear effect of the decision of this Court in Hamling's Case. 
  1. Accordingly, the appellant's non-compliance with s 275 of the Act in the present case did not mean that it was inevitable that her action should be dismissed. There was a judicial discretion to be exercised in that regard. I will discuss the nature of that discretion in due course. For present purposes, it is sufficient to note that both Berowra Holdings and Hamling's Case were concerned with statutory prohibitions on the commencement of proceedings.  The statutory provisions in question in those cases were clearly directed at the procedural remedy by which substantive rights might be vindicated.
  1. In the present case, the appellant's non-compliance with s 237(1)(a) and s 250 of the Act meant that, notwithstanding her rights at common law, she was not entitled to seek damages from the respondent. The appellant's action was commenced contrary to the statutory prohibition on commencing the action in s 275; but, further, the appellant had, and presently has, no entitlement to damages which could be given effect by a judgment on the merits of her claim. In the state of the facts which have occurred at this time, the appellant cannot recover damages by virtue of the operation of s 237 and s 250 of the Act. Ordinarily, that would mean that, because no good purpose can be served by the court allowing the appellant's action to remain on foot, the action would be struck out on the basis that, her action being bound to fail, it is an abuse of process.[5] 
  1. The language of s 237 and s 250 is quite different from the proscription in s 275 of the Act. The difference is 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. That is, I think, a real difference. The Court should not, I think, ignore differences which the legislature has deliberately made. The language of s 275 of the Act, considered in Hamling's Case, is analogous with the language of s 151C of the Workers Compensation Act 1987 (NSW) which was the subject of consideration by the High Court in Berowra Holdings; but the language in s 237 and s 250 is concerned with the substantive entitlements of the claimant.   
  1. In my respectful opinion, s 237 and s 250 go to the substantive entitlement of a claimant to recover damages. I was initially of the tentative view that the difference in statutory language may have been decisive against the appellant in this case because of the emphasis in Berowra Holdings upon the difference between statutory prohibitions which go to substantive rights and those which affect only matters of procedure.  Further reflection has, however, led me to conclude that the substance/procedure dichotomy discussed in Berowra Holdings is not decisive of this case.  Nevertheless, the reasoning in Berowra Holdings does contain authoritative instruction in relation to the determination of this case notwithstanding my view that s 237 and s 250 go to the appellant's entitlement to recover damages from the respondent.
  1. The first point to be made here is that neither s 237 nor s 250 of the Act purports to prohibit the Court from continuing to entertain a claim brought contrary to those provisions. What those provisions do is ensure that an action brought in disconformity with those provisions cannot succeed because the fact of the disconformity means that no liability can be established in the action against the defendant. While the disconformity exists, the defendant can be under no liability in damages to the plaintiff.
  1. To reach this conclusion, it is not necessary to square the requirements of the Act with the elements of a right of action at common law: it is sufficient that s 237 and s 250 of the Act clearly deny the entitlement of a claimant to seek damages otherwise than in conformity with the applicable provisions of the Act. That is a matter of substantive entitlement. It is on that basis that the cases such as Bonser v Melnacis,[6] Hawthorne v Thiess Contractors Pty Ltd,[7] Austral Pacific Group Ltd (In Liquidation) v Airservices Australia[8] and Tanks v WorkCover Queensland,[9] upon which the respondents relied, were decided.  Neither these cases, nor the decision in Roberts v Australia and New Zealand Banking Group Limited[10] which is analysed in the reasons of Philip McMurdo J, addressed the question whether a pending action, which does not, but which might be made to, conform with s 237 and s 250, must be struck out as an abuse of the process of the court.
  1. In this case, the position is that, on the material before the learned primary judge and this Court, it was, and is, apparent that the impediment to the success of the appellant's action, being the want of a notice of assessment, is likely to be removed. When that occurs, there will no longer be an impediment to the entitlement of the appellant to seek damages for her injury. There is nothing in the text of s 237 or s 250 which suggests that an action which was doomed to fail because of the want of a notice of assessment may not be rendered viable by the issue of the notice. 
  1. On the respondents' application to strike out the appellant's action, the question was not whether the court had jurisdiction to entertain the action: it plainly had jurisdiction: the decision of the High Court in Berowra Holdings authoritatively establishes that proposition: if a breach of statutory prohibition on the commencement of an action does not deprive the court of jurisdiction, then, a fortiori, provisions such as s 237 and s 250 of the Act which are not in terms concerned with the jurisdiction of the court cannot have that result.  Nor was the question whether the appellant was, at that time, able to demonstrate an enforceable liability in the respondent to pay her damages by way of recompense for her injury of 14 July 2003.  Rather, the question was whether the appellant's action should be summarily terminated because a notice of assessment had not issued, bearing in mind the prospect of the imminent issue of a notice of assessment.  In my respectful opinion, the learned primary judge erred in failing to appreciate that he had a discretion to exercise in this regard.
  1. At this point one must turn to consider the nature of the discretion to be exercised in such a case. The reasons of the High Court in Berowra Holdings did not explicitly identify the source and nature of the discretion held to exist in that case.  The respondent in the present case argued that the relevant discretion has its origin in "the inherent authority of the Supreme Court … to stop the abuse of its process when employed for groundless claims".[11]  That submission may be accepted for the purpose of the argument which the respondent seeks to make here.  The respondent then submits that the appellant's action must fail because the appellant has no "title" to seek damages from the respondent.  Further, the respondent argues that the appellant was not merely not entitled to pursue her claim against the respondent – by action or otherwise – but nothing she did after commencing her action "or could now do, can circumvent that defence, so as to, in effect, 'feed' that title".  I pause to note that, no doubt, the respondents' reference to "feeding the title" is drawn from the language of the reasons in Austral Pacific Group Ltd (In liq) v Airservices Australia.[12] Accordingly, so it was submitted by the respondent, the learned primary judge had no alternative but to dismiss the appellant's action as an abuse of process in that it was an action which was bound to fail.
  1. But, in this case, the appellant's "title" to pursue her claim can, given time, be "perfected", so far as the infirmities which flow from non-compliance with s 237(1) and s 250 are concerned, by the issuing of a notice of assessment. On the evidence, a notice of assessment will issue; apparently within a relatively short time. The situation is one in which there is a real prospect that the appellant will be able to cure the defect in her title to sue the respondents even though, on the facts as they exist at the moment, the respondent is under no enforceable liability to the appellant.
  1. At this point, in conformity with the instruction in Berowra Holdings,[13] reference to the "procedural structure for the conduct of litigation in the court" is necessary.  Within the Queensland court structure, it is now well-established that an action which is susceptible of being struck out as an abuse of process is not necessarily a ity.[14] 
  1. Prior to 27 September 1975, when O 32 r 1(6) was added to the Supreme Court Rules, an action commenced before the facts necessary for a complete cause of action had occurred was liable to be struck out, and the deficiency could not be cured by amendment to add reference to the facts that occurred after it had been commenced.[15]  That situation changed with the addition of an express power of amendment in such a case.  Rule 375(2) of the Uniform Civil Procedure Rules 1999 (Qld) ("UCPR") continues the effect of O 32 r 1(6).  Rule 375 provides relevantly:

"(1)At any stage of a proceeding, the court may allow or direct a party to amend a claim, anything written on a claim, a pleading, an application or any other document in a proceeding in the way and on the conditions the court considers appropriate.

(2)The court may give leave to make an amendment even if the effect of the amendment would be to include a cause of action arising after the proceeding was started."

  1. The effect of r 375(2) is, by necessary implication, to ensure that an action, commenced before all the facts necessary to give rise to a "title" to sue have occurred, is not a " ity": the action may be irregularly commenced and susceptible of being struck out as an abuse of process, but it has sufficient existence in the eyes of the law to be capable of being made regular by amendment.
  1. As I have said, there is, in this case, good reason to believe that the facts will change so as to "feed" the appellant's title to recover damages from the respondent. The question is whether, in the light of the prospects of a change in the facts which bear upon the appellant's entitlement to recover damages from the respondent, a court should refuse to exercise the discretion to terminate the action because, on the facts as they presently stand, it cannot succeed.
  1. The learned primary judge erred in failing to appreciate that there was a discretion to be exercised. It, therefore, falls to this Court to exercise the discretion. In the exercise of this discretion, the principal consideration relating to the non-compliance of the action with s 237(1) and s 250 of the Act is whether the infirmity in the appellant's title to sue is likely to be cured. It was, therefore, material that:
  1. there was a real likelihood, amounting to a virtual certainty, that the notice of assessment will issue;
  1. the notice of assessment is likely to issue soon, or at least sufficiently soon for there to be no suggestion by the respondent that any delay is likely to prejudice the respondent in its ability to have a fair trial;
  1. on the evidence, the notice of assessment soon to issue is likely to show that the appellant has suffered a substantial injury.  That circumstance tends to confirm that a loss of the opportunity to establish an entitlement to damages "on the merits" will be a substantial prejudice to the appellant;
  1. if the action is struck out, any new action by the appellant will be defeated by the Limitation of Actions Act 1974 (Qld), and so the appellant would suffer prejudice in the form of a loss of the opportunity to have her claim determined on the merits.  It may be noted that the appellant's proceedings were not commenced out of time:  so far as the present proceedings are concerned, she does not need an extension of time in order to defeat a defence under the Limitation of Actions Act.
  1. It is also a material consideration, in favour of allowing the present action to proceed, that no prejudice to the respondents has ensued from the appellant's non-compliance with the Act up to the present time. That consideration is material as well in respect of the appellant's non-compliance with s 275 of the Act.
  1. On the other hand, the respondent points to the absence of an explanation from the appellant for her failures to comply with the Act. One can, however, readily enough infer from the correspondence between the parties that the appellant's failures to comply with the requirements of the Act were due to her lawyer's inability to comprehend what was required in order to progress her claim in conformity with the Act. Importantly, there can be no suggestion that the appellant deliberately flouted those requirements, or intentionally pursued some forensic advantage to which she would not have been entitled had she availed herself of the mechanisms contained in s 296 or s 298 of the Act. Nor is it suggested that the appellant sought to obtain some forensic advantage which would have been denied her had she conformed to the requirements of s 302 of the Act.
  1. The balance of these considerations clearly suggests that the discretion to strike out the action should be exercised by refusing to do so.

Conclusion and orders

  1. As I have said, I agree with the orders proposed by Philip McMurdo J.

MUIR J:

  1. I agree with the orders proposed by McMurdo J. I agree with the reasons of Keane J.A. and wish to make only a few observations.
  1. Whether a statute operates to invalidate an act the doing of which is prohibited by the statute “must be determined in accordance with the ordinary principles that govern the construction of statutes”.[16]
  1. In Project Blue Sky Inc. v. Australian Broadcasting Authority,[17]  McHugh, Gummow, Kirby and Hayne JJ., referring to a test of invalidity which distinguished between directory and mandatory requirements, said:

“A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid.… In determining the question of purpose, regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute’.” (citation omitted).

  1. Although, as Keane JA concludes, ss. 237(1) and 250(1) go to the substantive entitlement of a claimant to recover damages, the reasoning in Berowra Holdings Pty Ltd v Gordon[18] offers useful guidance in construing the Workers Compensation and Rehabilitation Act 2003 (“the Act”).
  1. All members of the Court in Berowra concluded that s. 151C of the Workers Compensation Act 1987 (NSW) did not invalidate proceedings commenced in breach of it. Like s. 151C, each of ss. 237(1), 250(1) and 275 does not expressly prescribe the consequences of non-compliance. Both Acts constitute statutory schemes modifying common law rights in respect of damages claims in which the worker’s right to sue the employer for damages “remains a right sourced at common law”.
  1. In the joint judgment in Berowra considerable emphasis was placed on the established approach to statutory construction under which it is presumed that a legislature does not intend to cut down the jurisdiction of the courts “save to the extent that the legislation in question expressly so states or necessarily implies”.[19] No intention to exclude the court’s jurisdiction is implicit in the language of the Act.
  1. Sections 276, 296, 297 and 298 of the Act envisage circumstances in which proceedings may be commenced despite non-compliance with s. 275. Whether the conditions requisite for the operation of those provisions have been met will not always be readily apparent. Courts, by inference, have jurisdiction to determine matters relevant to their application or non-application. It is thus “clear that Parliament entrusted the courts in which proceedings are commenced to differentiate between cases where facts are established which would enliven the exceptions; and cases where they are not”.[20]
  1. I can detect no reason, grounded in public policy, why the legislature should be taken to have intended to deprive courts of jurisdiction to entertain proceedings such as the one under consideration.
  1. For the reasons advanced above, when the respondents’ strikeout application came before the primary judge, he had jurisdiction to deal with it. However, as the primary judge regarded the making of an order striking out the proceedings as the inevitable outcome of the application, his Honour failed to exercise the discretion vested in him. Had his Honour truly exercised a discretion, and had it been exercised in the same way, it seems to me that it would have been difficult for this appeal to succeed.
  1. The proceedings were commenced in breach of the requirements of ss. 237(1), 250(1) and 275 of the Act. The appellant could have, but did not, avoid some of the adverse consequences of non-compliance by obtaining relief under other provisions of the Act, as McMurdo J discusses in his reasons. And, importantly, at the time of the strikeout application no notice of assessment had issued. The appellant thus had no entitlement to seek damages for her injury,[21] was prohibited from seeking such damages[22] and was obliged, before commencing proceedings, to give a notice under s 275.[23]
  1. The effect of r. 375 of the Uniform Civil Procedure Rules 1999, as Keane JA points out, is that proceedings irregularly commenced may be made regular by amendment, even if the amendment includes a cause of action arising after the commencement of the proceedings. But parties’ rights and obligations in respect of statutory provisions such as those under consideration stand to be determined by courts on the basis of existing fact and not with regard to matters which may or may not come to pass.
  1. Consequently, a discretion as to whether an action commenced and maintained in breach of the subject provisions of the Act should be struck out, normally, would be expected to be exercised in favour of the defendant. In this case, however, the singular circumstances described by Keane JA and McMurdo J justify the exercise of a discretion against the striking out of the proceedings.
  1. PHILIP McMURDO J:  This appeal involves the effect of proceedings commenced inconsistently with one or more of the provisions of Chapter 5 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“the present Act”).  Do such proceedings have any effect, or are they a “ ity” as the respondent argues?  If they have some effect, is their non‑compliance with Chapter 5 an “absolute bar” as the primary judge held?  Or do they have effect, subject to a susceptibility to being struck out or dismissed for non‑compliance with Chapter 5, in the exercise of the court’s discretion, and if so, what is the scope of that discretion?
  1. This case was brought inconsistently with Chapter 5 in several respects.  The primary judge struck it out for that non‑compliance.  He found it unnecessary to decide the first of those questions, because in his view, if the proceedings were not a ity, still they had to be struck out because to allow them to continue would be “inevitably futile”[24].  The judgment was given just prior to that of this Court in Hamling v Australia Meat Holdings Pty Ltd (No.2)[25], where the Court upheld a judgment refusing to strike out proceedings brought in non‑compliance with s 303 of the WorkCover Queensland Act 1996 (Qld) (“the 1996 Act”), the predecessor of s 296 of the present Act.  That is not one of the provisions of Chapter 5 which were contravened by the commencement of the present proceedings, and the respondent argues that the present case is distinguishable and that these proceedings were a ity notwithstanding that judgment and the reasoning, which it applied, of the High Court in Berowra Holdings Pty Ltd v Gordon[26].  Alternatively, if these proceedings were not a ity, the respondent says that the primary judge was right to strike out the proceedings.  The appellant argues that the proceedings were not a ity, and that the proper exercise of any discretion required the dismissal of the application to strike them out.

The facts

  1. The appellant worked for the first respondent from October 1999 until 14 July 2003, at its hotel in Mackay.  Her job was to unload cartons as they were delivered to the hotel and to move them to a nearby bottle shop.  This required a lot of lifting.  She says that in late 2001, she began to feel pain in her right neck and shoulder area.  But she continued to work and made no claim then for compensation.
  1. On 14 July 2003 she says that she felt a sharp pain in her right shoulder after lifting some cartons of beer and that this was much more severe than her previous pain.  She arrived at work the next morning but found that she could not work and she has not worked since.  Ultimately, the second respondent, as the self‑insurer[27] of the first respondent, has accepted that the appellant has a permanent impairment of 18 per cent from this injury at work on 14 July 2003.
  1. In November 2003 the appellant began to experience pain in her other shoulder.  She then consulted solicitors before seeking, in January 2004, assessments of permanent impairment in respect of the injuries to her shoulders.  Each of these injuries was said to have occurred on 14 July 2003.  The insurer, which was then WorkCover, was obliged to have those assessments made and to give notices of them[28].
  1. She also had advice from counsel, to the effect that she should take steps to protect her position, having regard to any limitation period, in the event that there was medical opinion that her injuries had not been suffered simply on 14 July 2003, but over a period going back towards when she started work at the hotel in 1999.  Accordingly, in March 2004 she applied for a Damages Certificate under the 1996 Act[29] to the end of urgently commencing proceedings for any injury incurred before 30 June 2001. 
  1. On 20 May 2004 she received a Conditional Damages Certificate, permitting her to commence proceedings for any injury to 30 June 2001.  On the following day, 21 May 2004, she commenced the present proceedings.  Although the certificate related only to an injury to June 2001, the statement of claim also pleaded the injuries suffered on 14 July 2003.  But as WorkCover had made clear to her solicitors[30], the certificate related only to any injury to June 2001, and she would have to follow the necessary pre‑proceeding steps for any injury suffered subsequently.
  1. No other proceedings have been commenced. If the appellant had to start new proceedings now she would not be able to do so because she has still not found her way through the necessary gateways to the commencement of proceedings which are prescribed by Chapter 5.  And of course any such proceedings would now be statute barred, three years having passed since 14 July 2003. 
  1. Returning to the history, what the appellant needed to do next was to have her injury or injuries assessed and to receive a notice or notices of assessment. For an injury suffered on 14 July 2003, that was required by s 250 of the present Act which provides in part:

“250(1)  The claimant may seek damages for the injury only if the insurer gives the claimant a notice of assessment.”

For any injury suffered before then, or more precisely prior to the commencement of the present Act on 1 July 2003, that was required by s 262 of the 1996 Act.

  1. But instead of seeking that assessment, the appellant through her solicitors lodged a notice of claim with WorkCover in June 2004.  Section 275 of the present Act requires a notice in accordance with that section to be given “before starting a proceeding in a court for damages”.  A corresponding requirement in the 1996 Act was in s 280.  It is common ground that this was not a complying notice under either Act, because it was a step in the seeking of damages which was taken without a notice of assessment.  WorkCover declined to accept the notice on the basis that it was in the wrong form for any injury sustained after 1 July 2003.  Treating the notice as being for any injury governed by the 1996 Act, WorkCover then advised that it was willing to waive any non‑compliance with the requirements for a valid notice of claim if the appellant agreed to satisfy certain conditions.  On 22 June 2004, the appellant through her solicitors accepted those conditions.  In consequence she had the benefit of s 308 of the 1996 Act, which extended the period of limitation for the commencement of proceedings for such an injury, i.e. an injury suffered before July 2003.  Nevertheless she has not sought to take advantage of that extension, and by now her case would allege only the injury or injuries of 14 July 2003. 
  1. In August 2004 the claim and statement of claim in her proceedings were served on the solicitors for WorkCover (it was only subsequently that the second respondent became the self‑insurer).  No steps were taken either in the prosecution or defence of the proceedings, before the second respondent, Woolworths Ltd, took over from WorkCover.  In July 2005 the appellant’s solicitors wrote to the solicitors for Woolworths saying, amongst other things, that the proceedings related only to any injury prior to June 2001 and that because any claim for that period had now been abandoned, “those proceedings are no longer of any relevance”.  But as already mentioned, the statement of claim pleaded also the injury or injuries of 14 July 2003.  The letter also advised that notices of claim, for the periods 1 July 2001 to 30 June 2003 and 1 July 2003 to 14 July 2003, were being prepared, but that first the appellant would require assessments and notices of those assessments.  Of course it had become an obligation of Woolworths as the insurer to have the assessments undertaken and to give notice of them[31]. 
  1. Come January 2006, those assessments had not been completed and Woolworths wrote to the appellant’s solicitors to explain the reasons for the delay.  It is sufficient to say that none of this delay was attributable to the appellant.
  1. Unfortunately the completion of the assessments was then delayed by the appellant being diagnosed with cancer and undergoing major surgery in late January 2006.  The completion of the assessments had required an assessment by the General Medical Assessment Tribunal for the appellant’s alleged psychiatric injury consequent upon these physical injuries.  An appointment with that Tribunal, scheduled for February 2006, had to be cancelled because of the appellant’s illness.  In March 2006 the appellant’s solicitors sought an urgent mediation of her claims, which the solicitors for Woolworths refused unless the psychiatric injury claim was withdrawn.  Thereafter, nothing occurred before 14 July 2006 (three years from her injuries).
  1. On 29 August 2006 Woolworths wrote to the appellant to reject any claim for an “over period of time injury 1 July 2001 to 13 July 2003” and to advise that it accepted that there were injuries to both shoulders at work on 14 July 2003 resulting in a permanent impairment of 18 per cent.  Nevertheless, Woolworths said that this was not a notice of assessment and that the appellant was not entitled to go further without one.
  1. On 27 September 2006 the appellant’s solicitors delivered a notice of claim, limited to the injuries suffered on 14 July 2003.  This was immediately rejected as non‑compliant for a number of reasons, one being the absence of a notice of assessment.  That was attributed to the need for an occupational therapist to assess the appellant’s requirement for care.  That had been difficult to arrange because the appellant had been preoccupied with her treatment for cancer.  In the same letter, the solicitors for Woolworths said that in any case, a claim brought in respect of the 14 July 2003 accident was now statute barred.
  1. The appellant’s response was her application made to the primary judge. As filed, it was an application for leave pursuant to s 298 of the present Act to bring proceedings in respect of the injuries of 14 July 2003 despite non‑compliance with s 275.  By an amendment to the application, she sought a declaration that her proceedings filed on 21 May 2004 “are valid and effective for the purpose of satisfying the requirements of the Limitation of Actions Act 1974 in respect of injuries sustained by the applicant in an incident on 14 July 2003”.  Save for the effect on those proceedings from their contravention of Chapter 5, that was undoubtedly correct.
  1. The respondents filed a cross‑application seeking to strike out parts of the statement of claim.  But it seems that in the course of the hearing before the primary judge, that became an application to strike out the 2004 proceedings in their entirety.

The appellant’s non‑compliance

  1. Because the appellant wishes to pursue only a claim for injuries suffered on 14 July 2003, it is only the present Act which need be discussed.  The commencement of the proceedings contravened several provisions of that Act as follows. 
  1. First, it contravened s 250 because it was an act by way of seeking damages without having received from the insurer a notice of assessment.  Section 250 applied to the appellant’s case because, as is common ground, she was a person entitled to seek damages according to s 237(1)(b)[32].
  1. Next, it contravened s 275, which is within Part 5 of Chapter 5.  Section 273 provides that the object of Part 5 is “to facilitate the just and expeditious resolution of the real issues in a claim for damages at a minimum of expense.”  Section 275 requires that “before starting a proceeding in a court for damages”, a claimant must give a notice of claim under that section and within the limitation period.
  1. Part 6 of Chapter 5 provides for a compulsory conference and s 289(1) requires such a conference to occur “before the claimant starts a proceeding for damages.”
  1. Section 296 was another impediment to the commencement of the proceedings.  It provides that the claimant may start the proceeding only in certain events, which (other than where the insurer has admitted liability) require the passage of (usually) six months from the giving of a complying notice of claim, the insurer’s waiver of a complying notice of claim, or from the making of certain orders by the court permitting the claimant to start the proceeding despite non‑compliance[33].
  1. Section 295 somewhat restates the effect of these various provisions, providing as follows:

“295   Compliance necessary before starting proceeding

The claimant may start a proceeding in a court for damages only if the claimant has complied with –

(a)the relevant division under part 2, to the extent the division imposes a requirement on the person;  and

(b)part 5, other than as provided by sections 297 and 298;  and

  1. part 6;  and
  2. section 296.”
  1. Save then for s 250, each of these provisions is in terms which preclude the commencement of a proceeding, either until the relevant step has been taken or, in the case of s 296, until a certain time has passed from an event.  In each case, the evident object is to avoid unnecessary litigation by requiring the worker’s claim to be articulated and negotiated before the worker is able to sue.  It may be accepted that these provisions, at least in some cases, could assist in the expeditious conduct of litigation, if it does occur.  Nevertheless, these are not provisions enacted to ensure a fair trial of any proceedings.  In particular, they are not intended to be substitutes for the procedural rules of pleading and disclosure, and other rules.
  1. Section 250 is expressed somewhat differently from the others, in that it precludes more generally the seeking of damages, rather than particularly the commencement of proceedings.  But as is common ground, s 250 was contravened here by the commencement of these proceedings.

What the appellant could have done

  1. As is now accepted, the appellant could have sought the court’s leave for the commencement of proceedings notwithstanding the absence of a notice of assessment and a complying notice of claim, and the non‑occurrence of the compulsory conference.  In that respect it is necessary to set out sections 251, 298 and 302:

“251Need for urgent proceedings

(1)This section applies in relation to an urgent need for the claimant to start a proceeding for damages.

(2)Section 276 provides a way for the claimant to satisfy section 302(1)(a)(ii).

(3)Also, the claimant may, under section 298, seek leave to start a proceeding for damages for an injury without complying with section 295.

(4)However, if the leave mentioned in subsection (3) is given, the proceeding started by leave is stayed until -

(a)the insurer gives the claimant a notice of assessment;  and

(b)the claimant –

(i)elects to seek damages for the injury;  and

(ii)complies with section 295.

298Court to have given leave despite noncompliance

(1)Subject to section 296, 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 275.

(2)The order giving leave to bring the proceeding may be made on conditions the court considers necessary or appropriate to minimise prejudice to the insurer from the claimant’s failure to comply with the requirements of section 275.

302Alteration of period of limitation

(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, or is taken to have given, a complying notice of claim;  or

  1. the claimant gives a notice of claim for which the insurer waives compliance with the requirements of section 275 with or without conditions;  or
  2. a court makes a declaration under section 297;  or
  3. a court gives leave under section 298;  and

(b)the claimant complies with section 295.

(2)However, the proceeding must be brought within 60 days after a compulsory conference for the claim is held.”

  1. The appellant could have sought an order under s 298 for leave to start the proceeding notwithstanding the absence of a notice of assessment and a notice of claim, and had that leave been given, the limitation period would have been extended according to s 302.  With the benefit of an order under s 298, the appellant would have had the time required to obtain a notice of assessment, lodge a complying notice of claim and attend to the other steps.
  1. The potential for an order under s 298 is relevant in at least two ways.  Firstly, it is relevant in the construction of this statutory scheme, and in the consideration of the effect of non‑compliance upon proceedings, that the Act provides this means of avoiding that non‑compliance where proceedings must be commenced in circumstances of urgency.  Secondly, if there is a discretion to be exercised and depending upon its scope, it is relevant to consider that the appellant did not seek the benefit of s 298.

“ ity”

  1. The respondents argue that these proceedings were a ity, an argument heavily relying upon this Court’s decision in Roberts v Australia and New Zealand Banking Group Ltd[34].  It was there held that proceedings brought without there having been a notice of claim, and thereby in contravention of s 280 of the 1996 Act (equivalent to s 275 of the present Act), and for which no leave had been obtained prior to their commencement (under the equivalent of s 298 of the present Act), should be struck out.  The court was concerned with two questions.  The first was whether the need for compliance with the notice of claim provisions could be excused because of an estoppel or waiver.  On this the majority held that an estoppel or waiver could not operate as those provisions were enacted for the benefit of the public.  The second was whether leave to commence the proceedings could be granted after their commencement.  The Court held that it could not be.  It was after resolving those two questions that the Chief Justice, with whom Mackenzie J agreed, said[35]:

“[33]In Holmes, Dutney J said: (382 [21])

“Since the cause of action is postponed until the requirements of the legislation are met I do not believe this Court has the power to grant leave under s 305 of the Act to commence proceedings having retrospective effect to a period before the cause of action arose.”

[34]I agree with that view, based on the analysis in Tanks v WorkCover Queensland [2001] QCA 103.  Williams JA there said that:  ([50])

“the provisions of Chapter 5 operate so that proceedings to enforce the common law cause of action cannot be commenced (the worker cannot sue) unless the requirements specified therein are complied with;  the right to commence proceedings is suspended until the requirements of the Act are satisfied.”

See, to similar effect, [26] per Davies JA.

[35]This proceeding was commenced without leave and without the lodging of a notice of claim under s 280 of the Act.  Section 280(1) requires that “[b]efore starting a proceeding in a court for damages, a claimant must give notice under this section within the period of limitation …”.  Compliance with the requirements under the Act is mandatory.  Section 302(b) provides that a claimant may start a proceeding “only if the claimant has complied with … part 5”.  Section 280 falls within pt 5.  These are provisions of substantive not procedural law (s 252(1)).  If a claimant does not comply with s 280, secure a waiver under s 280A, or secure a grant of leave under s 305, any proceeding is a ity (Tanks).”

  1. It seems to have been assumed that a conclusion of “ ity” followed from the resolution of those other questions. Insofar as that conclusion was said to derive from Tanks v WorkCover Queensland, with respect, the characterisation of non‑compliant proceedings as a ity was not expressed within any of the judgments in Tanks.
  1. The correctness of that characterisation must be revisited in light of the High Court’s judgments in Berowra Holdings Pty Ltd v Gordon[36] and Brighton Und Refern Plaster Pty Ltd v Boardman[37] and this Court’s application of that reasoning in Hamling v Australia Meat Holdings Pty Ltd (No.2)[38].  The respondent argues that each is distinguishable from the present case because of the terms of the particular provision involved.  The primary judge seemed inclined to accept that argument but found it unnecessary to decide the matter. 
  1. In Berowra Holdings, the provision in question was s 151C of the Workers Compensation Act 1987 (NSW) which provided that a worker was not entitled to commence proceedings for common law damages until six months had elapsed from a notice of the injury to the employer.  The provision is analogous to s 296 of the present Act, or s 303 of the 1996 Act which was the subject of Australia Meat Holdings.  The worker commenced proceedings in contravention of s 151C, by commencing within the six months.  No point about that was taken until shortly before the scheduled trial and after the defendant had made an offer to settle under the rules of court, which required the offer to remain open for a certain period unless the court permitted its withdrawal.  Under the rules, leave to withdraw the offer could be granted even subsequent to an acceptance.  After making the offer, the defendant thought that it could rely upon the contravention of s 151C.  It sought to amend its defence to plead that contravention and it sought leave to withdraw the offer.  The primary judge held that the contravention of s 151C rendered the proceedings a ity.  He then went on to dismiss the proceedings and also, “for completeness”, allowed the amendment and granted leave to withdraw the offer.  In the New South Wales Court of Appeal and in the High Court it was unanimously held that the proceedings were not a ity and that they were wrongly dismissed. 
  1. As was there held, the question is one of the proper construction of the relevant statute. Of course, care must be taken in the employment of the reasoning relating to one statute in the consideration of another. Nevertheless the reasoning in Berowra is immediately relevant to the present case, and to the several respects in which the commencement of the present proceedings contravened the statute. 
  1. The High Court accepted that “the primary objective of s 151C is to encourage an injured worker to attempt in the first instance to satisfy his or her claim for damages by negotiation with the employer rather than by immediate recourse to litigation.”[39]  That observation would be made about the provisions contravened in the present case.  Equally relevant is the statement within the joint judgment that to the extent that there is a public benefit from provisions such as s 151C, that benefit is “mediated through a benefit conferred on individual litigants, not … through restricting the court’s jurisdiction.”[40] 
  1. At least three further matters referred to by the High Court are equally relevant here. The first is that in the consideration of whether a statutory bar to the commencement of proceedings removes the right of action or simply the remedy, “the approach of the courts has consistently been to require very clear legislative intent before treating a statutory provision as taking away common law rights of a plaintiff, where there is an alternative construction available.”[41]  Secondly a construction which gives legal effect to proceedings commenced in contravention of s 151C cannot be seen as undermining the legislative prohibition, once the role of procedural law is understood[42].  Thirdly the “ ity” or “invalidity” notion cannot be easily severed from that of jurisdiction, i.e. the notion that the statute has removed the court’s jurisdiction to hear the claim, and it is a “‘basic rule’ that a legislature does not intend to cut down the jurisdiction of the courts ‘save to the extent that the legislation in question expressly so states or necessarily implies.’”[43]
  1. As the High Court observed, consistently with the primary judge’s characterisation of the proceedings as a ity, it was unclear why he felt it necessary (or indeed open) to make orders in those proceedings, such as the giving of leave to amend the defence or withdraw the offer[44].  If the proceedings lacked validity or, if it be a different matter, were a “ ity”, then no order of the court was required to dispose of them.
  1. The High Court heard Berowra Holdings with Brighton Und Refern Plaster Pty Ltd v Boardman[45].  In that case, a plaintiff who had commenced his proceedings in contravention of s 151C obtained an interlocutory judgment in the District Court of New South Wales for damages to be assessed.  Again, it was argued that the judgment should be set aside because the proceedings were a ity.  As held in Berowra, they were not a ity and the District Court judge’s refusal to summarily dismiss them was considered to be a proper exercise of the relevant discretion.  Although she had dismissed the application on the basis that the employer had waived the contravention of s 151C, the High Court said the discretion was a wider one under the procedural rules, and as the court said also in Berowra Holdings, a consideration of waiver was inapt[46].
  1. In Australia Meat Holdings it was the unanimous view of Jerrard and Holmes JJA and Mackenzie J that proceedings commenced in contravention of s 303 of the 1996 Act, the equivalent of s 296 of the present Act, were not a ity, effectively for the reasons given by the High Court in Berowra Holdings and Brighton v Boardman. 
  1. For the respondents, Mr Douglas SC argues nevertheless that the present proceedings are and always have been a ity for their having been commenced in contravention of the provisions already discussed.  He seeks to distinguish those provisions from those contravened in Berowra Holdings, Brighton v Boardman and Australia Meat Holdings, upon the basis that they were restrictions upon the commencement of proceedings absent the passage of a certain time passing from an event, whereas the present case involves restrictions upon the commencement of proceedings absent the occurrence of an event.  In my view, the difference is immaterial.  And the other elements of the reasoning in Berowra Holdings are just as relevant here. 
  1. In Berowra Holdings the High Court held that s 151C affected the remedy, not the right of action.  The respondents argue that this distinguishes s 151C from the relevant provisions here, because they are “provisions of substantive law” according to s 235.  But for at least two reasons, this argument does not provide a basis for distinguishing Berowra Holdings.  The first is that the authorities do not clearly support the argument that the Queensland provisions go to the worker’s right of action and not the remedy.  Secondly if it is the right of action which is affected, this does not compel the conclusion that proceedings commenced in contravention of any of them are a ity.
  1. As to the first of those matters, the respondents’ argument relies upon Bonser v Melnacis[47]; Austral Pacific Group Limited (In Liquidation) v Airservices Australia[48]; and Tanks v WorkCover Queensland[49].  In Bonser, the proposed claim against the employer was not by the worker, but by another tortfeasor for contribution under s 6(c) of the Law Reform Act 1995 (Qld).  The worker had not complied with s 262 of the 1996 Act, the equivalent of s 250 of the present Act.  It was held that in consequence the defendant could not then sue the employer.  The Court was persuaded to follow Victorian authority, and in particular the majority view in Wilson v Nattrass[50], that statutory schemes requiring certain steps to be taken before proceedings for common law damages “contingently extinguished” rights of action[51].  The Court was also persuaded by a line of authority in New South Wales, and in this Court in Austral‑Pacific v Air Services[52], as to the effect of s 44 of the Safety Rehabilitation and Compensation Act 1988 (Cth).  On one view of the judgment in Bonser, non‑compliance with the present s 250 would put paid to the right of action.  But it is far from clear that this is what the Court there held, as Williams JA later explained in Tanks.  It was unnecessary for the Court to so hold.  Its concern was whether in terms of s 6(c) of the Law Reform Act, the employer was then a person who, if sued, would have been liable.  The prospect that the worker’s entitlement against the employer would be “enlivened” by a subsequent compliance with the provision was not, in the Court’s conclusion, sufficient to engage s 6(c).
  1. Subsequently the High Court affirmed the decision of the Full Court in Austral Pacific v Air Services.  The High Court confirmed that upon the proper construction of that provision[53] the right of action itself had been extinguished, as it had held in Georgiadis v Australian and Overseas Telecommunications Corporation[54].  But that provision was in markedly different terms from any of those relevant to the present case.  The judgment is not authority for a general proposition that statutes which require steps before proceedings for common law damages extinguish the right of action.
  1. In Tanks v WorkCover Queensland, the question was when the period of limitation commenced for an action for damages subject to the 1996 Act.  The issue was whether the period commenced when the cause of action was or would be complete under the common law, or whether time ran only from the worker’s receipt of a notice of assessment, removing the bar (from the equivalent of the present s 250) to “seeking damages”.  For differing reasons, each member of the court held that the limitation period began when the cause of action was or would be complete at common law.  Davies JA held that “generally, no cause of action arises in respect of an injury to which the Act applies, before the entitlement conditions are complied with”, so that the entitlement conditions are given “substantive effect”[55].  But the Act was to be construed “as providing an exception to the substantive operation of these provisions for the purposes of the Limitations of Actions Act” by deeming “the cause of action which it substitutes to have commenced when a cause of action for damages by a worker or a dependant of a deceased worker would have arisen independently of the operation of the Act”.  In the view of Williams JA, “the ultimate proceedings in court in which the worker claims damages are proceedings based on a cause of action which is vested in the worker independently of the Act”, and these provisions “do not abolish or destroy the common law cause of action for damages.”[56]  In a passage adopted in Roberts v Australia and New Zealand Banking Group Ltd[57] Williams JA said:

“[50]  It follows, in my view, that the Act does not abolish the common law cause of action for damages by a worker against an employer until the requirements of Chapter 5 are not (or cannot be) complied with;  nor does the Act substitute a new statutory cause of action for the common law cause of action.  Rather, the provisions of Chapter 5 operate so that proceedings to enforce the common law cause of action cannot be commenced (the worker cannot sue) unless the requirements specified therein are complied with; the right to commence proceedings is suspended until the requirements of the Act are satisfied. …”

Mullins J said that s 253 (s 250 of the present Act) was “a limitation on the common law causes of action for damages for an injury sustained by a worker and does not substitute statutory causes of action.”[58]  That agreed with the reasoning of Williams JA, in preference to that of Davies JA who saw the cause of action as one “substituted” by the statute. 

  1. According to the prevailing view in Tanks, these provisions affect the remedy and not the right of action.  That is notwithstanding the terms of s 235 that these are “provisions of substantive law”, for as Williams JA said[59], that is not to give the provisions of Chapter 5 some effect “otherwise than in accordance with the ordinary meaning of the language used”.  The result is that according to the prevailing view in Tanks, these provisions are not materially different from that considered in Berowra Holdings.
  1. Alternatively, if any of these provisions, and in particular s 250, do extinguish the common law cause of action and substitute a statutory right of action if and when their requirements are met, it would not follow that these proceedings were a ity.  Many proceedings are brought without the foundation of a cause of action against the defendant, or at least a cause of action to which the plaintiff is entitled.  But they are not ities.  Proceedings are not a ity simply because, for example, the plaintiff fails to establish an entitlement to the subject matter of the proceedings[60].  Moreover, in Queensland, it is not necessary that the plaintiff’s cause of action should have accrued at the commencement of the proceedings; a plaintiff may obtain judgment upon a cause of action arising subsequently[61].  Accordingly, it does not follow that proceedings are a ity if the plaintiff has no right of action at the commencement of the proceedings.  In particular if s 250 does go to the right of action itself, a plaintiff who becomes entitled to seek damages in terms of s 250 after commencing proceedings could, by amendment, pursue that right of action within those proceedings (subject to the matters discussed below).
  1. In Stone v Ace-IRM Insurance Broking Pty Ltd[62], McPherson JA said[63]:

“The concept of some proceedings being a ‘ ity’ has always been a difficult one, and is essentially inconsistent with the principle that the Court retains control of all proceedings commenced within its jurisdiction.  Since the Judicature Act, it has exercised that control by deciding as a matter of discretion whether or not those proceedings should be struck out or stayed as an abuse of process.  Statute apart, courts should not be readily disposed to condemn proceedings as a ‘ ity’, whatever in law that may mean, because it removes the discretion which they have and exercise over their own process.”

Similarly, and as explained in Berowra Holdings, courts should not be readily disposed, in construing a statute which qualifies a litigant’s rights or remedies, to a construction which condemns proceedings as a ity and thereby effectively denies their jurisdiction and control of their own process.

  1. The result is that these proceedings were not a ity.

Were the proceedings futile?

  1. The primary judge found it unnecessary to consider the ity point because the proceedings were bound to fail because of their non-compliance. His Honour said[64]:

“[18] Here, even if the action is valid unless set aside, the employer has applied to strike out the action under the rules.  Since the action was commenced in breach of a statutory postponement of the right to commence it, it seems to me that the employer is entitled to the relief sought.

[19]The worker has argued that I should exercise my discretion to refuse the relief sought by the employer.  The failure to comply with the pre‑court procedures prior to commencing the action, once raised, is in my view, an absolute bar to the ultimate relief claimed in the action.  In Berowra, the High Court drew an analogy with pleading a statute of limitations.  Since the worker concedes that the proceedings were commenced in contravention of the statute, insofar as any event on 14 January 2003 is concerned, the action must ultimately be dismissed.  It would not be a proper exercise of the discretion to strike out the action to allow it to continue and to allow both parties to incur further costs where to do so is inevitably futile.

[20]It follows that the alternative relief sought by the worker should not be granted and the employer’s cross‑application allowed.”

  1. In his Honour’s view then, the failure to comply with the pre‑court procedures, once raised, was “an absolute bar” to the relief claimed and it would be futile to allow the proceedings to continue.  There was a discretion to grant or refuse the dismissal order sought by the defendants.  But the exercise of that discretion was determined by the view that non‑compliance provided a complete defence to the proceedings. 
  1. That is inconsistent with the view subsequently expressed by this Court in Hamling v Australia Meat Holdings (No 2).  Of course, as already discussed, that case concerned the non‑compliance with the equivalent in the 1996 Act of the present s 296.  But again there is no basis distinguishing that provision from others in Chapter 5.  The unanimous view in Australia Meat Holdings was that this was a broad discretion, which was to be exercised according to the objects of these provisions and the scheme of which they are part.  The breadth of that discretion was indicated by the Court’s reference to the “numerous and many different factors”[65] for the exercise of that discretion as discussed in Brighton v Boardman and Berowra Holdings[66].  The result in Australia Meat Holdings was that the primary judge’s refusal to strike out the proceedings was upheld, not on the basis of his view that the defendants had waived the non‑compliance, but because there was a proper basis for the exercise of this broad discretion in the plaintiff’s favour.  Implicit in this judgment is the opinion that a non‑compliance with one of these provisions of Chapter 5 does not provide a defence to the proceedings.  Rather it enlivens the court’s powers to prevent the case going forward, and in particular to dismiss the proceedings, if that is in the interests of justice having regard to the proper objects of Chapter 5.
  1. Accordingly, if the provisions which were contravened in the present case are not materially different from the present s 296, the effect of Australia Meat Holdings is that the primary judge did not exercise the discretion which that judgment subsequently explained.
  1. At this point something more should be said of the restriction imposed by s 250.  It is different from the others because it does more than simply preclude the commencement of proceedings.  Assuming that a contravention of those other provisions would not ify the proceedings or provide a complete defence to them, nevertheless a court would still be required to give effect to s 250.  Consistently with s 250 a court could not give judgment for a claimant who had not by then obtained the notice of assessment which it requires.  But once the notice of assessment is received by a claimant who had commenced proceedings without it, the further prosecution of the proceedings would not contravene s 250.  There would have been the contravention of s 250 by the commencement of the proceedings, but as was apparently the view held in Australia Meat Holdings, that does not ify the proceedings or require their dismissal.
  1. In the New South Wales Court of Appeal in Gordon v Berowra Holdings Pty Ltd[67], Mason P, with whom the other members of the court agreed, said[68]:

“[49]I therefore conclude that s 151C(1) does not erect a jurisdictional preclusion.  Rather, it arms a defendant faced with contravening proceedings with power to move for summary dismissal and/or plead a defence invoking the provision.  A defendant’s failure to take either step means that the plaintiff and the court need not trouble with the matter.

[50]If there is no question of the defendant having waived the right to invoke the section and/or acted in such a way as to preclude reliance through the principles of estoppel by representation, then it will be appropriate for the defendant to seek summary dismissal.  In that event the order will issue because the proceedings are doomed to fail, not because the court lacks jurisdiction.  Unless and until the proceedings have been dismissed, the parties will be able to invoke the interlocutory processes of the court and the rules as to settlement offers.”

  1. In the joint judgment in the High Court in Berowra Holdings, a different view was expressed about the relevance or otherwise of concepts such as waiver.  It is necessary to set out this passage[69]:

“[35] The construction advanced by counsel for the worker should be accepted.  Section 151C does not extinguish rights or create new rights.  Rather, it postpones the remedy for the common law right to initiate proceedings in a court of competent jurisdiction.  The “right” which s 151C does confer is conferred upon the defendant employer and must be raised in accordance with the procedural rules appurtenant to the particular court.

[36] Proceedings commenced by a worker in contravention of s 151C engage the jurisdiction and procedural rules of the court in question.  Such proceedings are vulnerable to an application by the defendant to strike out the initiating process or to move for summary dismissal, but they are not a “ ity”.  Once a plaintiff has commenced proceedings, s 151C must be understood in connection with the procedural structure for the conduct of litigation in that court, not in isolation from it.  This is not to subjugate the statute to the Rules, but to recognise that the subject‑matter with which the statute deals is “rights” in the context of actual or apprehended litigation, and to understand the function of the Rules of Court and procedural law in facilitating adjudication of disputed claims.

[37] The upshot is that the effect of non‑compliance with s 151C will depend in each case upon the actions of the defendant in the context of the relevant Rules of Court.  Where the defendant requires an order by the court for the defendant to give effect to a point as to s 151C, in exercising its discretion the court will take into account numerous factors.  Not all of these (as Lord Griffiths recognised in Ketteman v Hansel Properties) may be measured in economic terms.

“Waiver”

[38] This conclusion does not depend upon the application of concepts such as “waiver”, although submissions both in the Court of Appeal and in this court sought to enlist them.  To embark upon a consideration of what is involved in this case by considering whether there was a “waiver” by the employer of its “rights” would be unproductive.  “Waiver” is a word which Judge Cardozo described as “misleading” on account of the many things for which it is made to stand.

[39] It is one thing to speak of the waiver of a legal, equitable or statutory right or privilege.  However, once it is appreciated that the court has jurisdiction and that its procedural rules have been engaged, concepts such as “waiver” (and acquiescence and estoppel) are confusing and imprecise.  This was pointed out by Dawson J in Verwayen and Lord Browne‑Wilkinson in Roebuck v Mungovin.  The conduct of pending proceedings by a party is relevant upon an application by that party for the exercise in its favour of a power of the court.  The outcome of such an application depends not upon the exercise of the right of a litigant or upon its denial, but upon the exercise of a discretionary power given to the court.  The decision of the court often will depend upon many different factors.  An outcome favourable to one party cannot be described adequately in terms of the waiver of the legal equitable or statutory rights of the unsuccessful party.”

  1. In Berowra Holdings, the relevant discretionary powers under the procedural rules were the powers to allow an amendment to the defendant’s pleading and to permit a withdrawal of an offer to settle.  In each case the defendant had to persuade the court to exercise a discretion in its favour.  The breadth of that discretion was not inconsistent with s 151C providing a complete defence if that had been duly pleaded.  The same applies to the discretion involved in Brighton v Boardman, where the defendant had to set aside an interlocutory judgment for damages to be assessed.  On such an application, the existence of a good defence does not assure the defendant of the order it seeks, and the discretion is broad.  Further, by the High Court’s analogy with the effect of a statute of limitations, there was an indication that similarly, there is a complete defence to proceedings brought in contravention of s 151C from the fact of that contravention.  In his separate judgment in Berowra Holdings, Kirby J said that if a contravention of s 151C “is pleaded promptly, there is no question but that it must be given effect so as to uphold the express command of Parliament.”
  1. On one view therefore, what was said in Berowra Holdings of a broad discretion has a more limited effect than as understood in Australia Meat Holdings where it is implicit in the reasons of Jerrard JA, with whom the other members of the court agreed, that non‑compliance does not provide a defence but rather a basis for dismissing or staying the proceedings as an abuse of process. 
  1. The primary judge here held that non‑compliance did provide a defence.  Upon that construction of the statute, the discretion to be exercised upon the respondents’  application to strike out where the respondents were not seeking an indulgence under the rules, would be subject to different considerations than the one according to which Australia Meat Holdings was decided.  Yet the respondents here did not argue that this judgment could be upheld on the basis that non‑compliance provided a defence to the proceedings.  Instead their arguments were that the proceedings were a nullity or that in the exercise of a discretion as described in Australia Meat Holdings, the circumstances of this case justified a dismissal of the proceedings.
  1. Ultimately, of course, the question is one of the proper construction of the present Act. That construction is informed by the expressed objects of Chapter 5 and the otherwise evident purpose of that regime.  Unlike a limitation period, which is enacted to protect the quality of justice from the effect of delay[70], these provisions are primarily concerned with the expeditious resolution of claims by the avoidance, where possible, of litigation.  They were not enacted because of a concern that absent these provisions, defendants were unlikely to have a fair trial.  Nor were they enacted for other purposes relevant to a statute of limitations, such as the need for people to be able to arrange their affairs on the basis that claims can no longer be made against them[71].  So it is not so clear that by proscribing the commencement of proceedings before certain steps are taken, the provisions of Chapter 5, by implication, provide non‑compliance provides a complete defence.
  1. That proscription could have effect, and the purposes of Chapter 5 could be promoted, without that implication because proceedings commenced in contravention of one or more of these provisions would engage the procedural rules, including those concerned with the prevention of an abuse of process.
  1. An argument for the construction of the present Act which would provide a defence for the fact of non‑compliance would be a challenge to the correctness of Australia Meat Holdings.  That challenge was not made.  In any case, I am not of the opinion that Australia Meat Holdings was clearly wrong, and that the relevant discretion is to be exercised upon the basis that the non‑compliance provides a complete defence.
  1. Accordingly, because the primary judge did not act according to the wider discretion explained in the subsequent decision of Australia Meat Holdings, it follows that it is for this court to exercise that discretion.

The discretion

  1. What then was the basis for the striking out of these proceedings? Because of the likelihood that the present impediment to the seeking of damages from s 250 could be overcome by the procurement of a notice of assessment, they were not frivolous or bound to fail. 
  1. Consistently with Australia Meat Holdings, the basis for such an order could only have been that the proceedings should be struck out as an abuse of process.  The commencement of proceedings contrary to any of these provisions does involve a misuse of the court’s process and enlivens the operation of the many powers which the court has to prevent that misuse or to reduce its impact.  Quite apart from the inherent powers of the Supreme Court, there is, for example, power to strike out a pleading as an abuse of process pursuant to UCPR r 171(1)(e).  There is also, of course, the power to stay proceedings.  The discretion is the broad one illustrated by Australia Meat Holdings.  There are many relevant considerations.  For example, a flagrant disregard and contravention of these provisions might require a stronger response than a contravention which was not so deliberate. 
  1. Before going to the more important discretionary factors in this case, two things should be noted. First, to recognise this discretion is not to encourage the contravention of these provisions or to weaken the operation of Chapter 5.  A claimant who decides to commence proceedings in disregard of any of these provisions does so at his peril.  He becomes susceptible to the summary dismissal of his proceedings, with its consequences in costs and its potential consequences for the operation of a limitation period.  Secondly, the existence of this discretion is not the same as the exercise of the power under s 298 nunc pro tunc.  The present appeal does not involve the question of whether the power under s 298 can be exercised after the commencement of the proceedings.  Although subsequent judgments have revealed that the proceedings in Roberts v Australia and New Zealand Banking Group Ltd were not a ity, they do not cast doubt upon the conclusion in that case that leave under s 298 can be given only prior to the commencement of proceedings.
  1. Turning then to the principal considerations, the first is that if the proceedings remain dismissed, the appellant is out of time to commence fresh proceedings. Yet the respondents concede that they would not be affected by any delay in having a fair trial. Instead it is the case that for some years the appellant has been providing information in relation to her claim, as she did by the notice of claim given in June 2004.  That notice was non‑compliant only because it was in the wrong form and because there had not been an assessment and a notice of assessment.  The respondent’s argument was unable to point to something which they did not know within the limitation period which a complying notice of claim would have told them.  The appellant, through her solicitors, had for some years been seeking that notice of assessment.  The primary obligation was upon the insurer in that respect.  It appears that ultimately the assessment was not completed, and a notice of assessment issued within the limitation period, because from January 2006 the appellant was caught up with the surgery and treatment for her cancer.  She has provided a good explanation of why she was unable to participate in whatever was required to conclude the assessment process.  The appellant’s solicitors have undertaken to comply with Part 5 once notices of assessment are to hand.  Accordingly, if the proceedings are restored, they will not be prosecuted until the respondents have had effectively the benefit of Chapter 5.  In summary, they would not be relevantly prejudiced by these proceedings remaining on foot.  In addition, the claim has apparent substance, at least in that the insurer has admitted that the injury was work related and has resulted in a permanent impairment of capacity.
  1. Against these considerations, the respondent strongly argues that the appellant has not taken advantage of the provisions designed to meet cases of genuine urgency. She did not apply under s 298.  However, at least until the beginning of 2006, there were not circumstances of urgency upon which she could have applied within the limitation period (prior to 14 July 2006).  She was apparently close to receiving notices of assessment and thereby being in a position to lodge a notice of claim which, without any application to the court, would have extended the limitation period (by s 302).  But as I have said, it clearly enough appears that her life was then overtaken by her surgery and subsequent treatment for cancer and it can be readily inferred that this was why nothing was done.  Of course, her solicitors had advised that the 2004 proceedings would not be prosecuted.  But that occasioned no prejudice to the respondents, who must have expected at all times that she would bring further proceedings for the injury of July 2003, and they are not materially prejudiced by the fact that she now seeks to fall back on her pleading of that case within the 2004 proceedings.
  1. The interests of justice, consistently with the promotion with the objects of Chapter 5, favour the proceedings remaining on foot.  In my conclusion, the appeal should be allowed and the orders made by the primary judge for dismissal of the proceedings and for costs should be set aside.  The respondents should pay the appellant’s costs of the appeal and of their application made to the primary judge.  The appellant sought a declaration that the proceedings were effective for the purposes of the Limitation of Actions Act.  It follows from these reasons that they were effective, but it is unnecessary to make the declaration.

Footnotes

[1] (2006) 225 CLR 364.

[2] (2006) 225 CLR 364 at 376–377 [33]–[37].

[3] [2007] 1 Qd.R. 315.

[4] [2007] 1 Qd R 315 at 324 [18]–[20] (citations footnoted in original).

[5] Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91; Batistatos v Roads & Traffic Authority (2006) 226 CLR 250 at 269 [21].

[6] [2002] 1 Qd R 1.

[7] [2002] 2 Qd R 157.

[8] (2000) 203 CLR 136 esp at 148 – 149 [31] – [34].

[9] [2001] QCA 103.

[10] [2006] 1 Qd R 482.

[11] Batistatos v Roads & Traffic Authority (2006) 226 CLR 256 at 269 [21].  See also Stone v Ace-IRM Insurance Broking Pty Ltd [2004] 1 Qd R 173 at 177.

[12] (2000) 203 CLR 136 at 148 – 149 [31] – [34].

[13] (2006) 225 CLR 364 at 376 [36].

[14] Stone v Ace-IRM Insurance Broking Pty Ltd [2004] 1 Qd R 173 at 177.

[15] Wigan v Edwards (1973) 47 ALJR 586 esp at 592, 596.

[16] Yango Pastoral Company Pty Ltd v First Chicago Australia Limited (1978) 139 C.L.R. 410 at 413 per Gibbs A.C.J.

[17] (1998) 194 CLR 355 at 390, 391.

[18] (2006) 225 CLR 304.

[19] Berowra at 375. See also per Kirby J at 390-391.

[20] Berowra at 391 per Kirby J.

[21] Section 237(1) of the Act.

[22] Section 250 of the Act.

[23] Section 275(1) of the Act.

[24] Phipps v Australian Leisure & Hospitality Group Ltd and Woolworths Ltd [2006] QSC 327 at [19]

[25] [2007] 1 Qd R 315.

[26] [2006] 225 CLR 364; [2006] HCA 32

[27] Under Part 4 of Chapter 2 of the Act

[28] s 178, s 179 and s 185 of the present Act

[29] Which applied to an injury incurred before the commencement of the present Act on 1 July 2003

[30] In an email of 1 April 2004

[31] s 179 and s 185 of the present Act and s 197 and s 203 of the 1996 Act

[32] In that she was a worker, whose application for compensation had been allowed but whose permanent impairment had not been assessed

[33] Made under s 297 or s 298

[34] [2006] 1 Qd R 482

[35] [2006] 1 Qd R 482 at 492

[36] (2006) 225 CLR 364; [2006] HCA 32

[37] (2006) 225 CLR 402; [2006] HCA 33

[38] [2007] 1 Qd R 315

[39] (2006) 225 CLR 364 at 373; [2006] HCA 32 at [24]

[40] (2006) 225 CLR 364 at 374; [2006] HCA 32 at [25]

[41] (2006) 225 CLR 364 at 373; [2006] HCA 32 at [23], quoting the Court’s decision in Plaintiff s 157/2002 v Commonwealth (2003) 211 CLR 476 at 505

[42] (2006) 225 CLR 364 at 374; [2006] HCA 32 at [27]

[43] (2006) 225 CLR 364 at 375; [2006] HCA 32 at [31]

[44] (2006) 225 CLR 364 at 380; [2006] HCA 32 at [50]

[45] (2006) 225 CLR 402, [2006] HCA 33

[46] (2006) 225 CLR 364 at 377; [2006] HCA 32 at [38], [39]

[47] [2002] 1 Qd R 1;  [2000] QCA 13

[48] (2000) 203 CLR 136;  [2000] HCA 39

[49] [2001] QCA 103

[50] (1995) 21 MVR 41

[51] [2002] 1 Qd R 1 at 10

[52] (1998) 157 ALR 125

[53] s 44 of the Safety, Rehabilitation and Compensation Act 1988 (Cth)

[54] (1994) 179 CLR 297

[55] [2001] QCA 103 at [26]

[56] [2001] QCA 103 at [47]

[57] [2006] 1 Qd R 482 at 492 [34] per de Jersey CJ

[58] [2001] QCA 103 at [58]

[59] [2001] QCA 103 at [44]

[60] Stone v ACE-IRM Insurance Broking Pty Ltd [2004] 1 Qd R 173 at 181

[61] UCPR r 375(2)

[62] [2004] 1 Qd R 173

[63] [2004] 1 Qd R 173 at 177

[64] [2006] QSC 327 at [18]–[20]

[65] Hamling v Australia Meat Holdings Pty Ltd (No. 2) [2007] 1 Qd R 315 at 324 [20]

[66] (2006) 225 CLR 402 at 377 [13]; (2006) 225 ALR 364 at 376-377 [37], 377 [39]

[67] (2005) 62 NSWLR 427

[68] (2005) 62 NSWLR 427 at 436

[69] (2006) 225 CLR 364 at 376-377 [35] – [39]

[70] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551 per McHugh J

[71] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 552

Close

Editorial Notes

  • Published Case Name:

    Phipps v Australian Leisure and Hospitality Group Ltd & Anor

  • Shortened Case Name:

    Phipps v Australian Leisure and Hospitality Group Ltd

  • Reported Citation:

    [2007] 2 Qd R 555

  • MNC:

    [2007] QCA 130

  • Court:

    QCA

  • Judge(s):

    Keane JA, Muir J, McMurdo J

  • Date:

    20 Apr 2007

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2006] QSC 32720 Oct 2006Application for eave pursuant to s 298 of the Workers Compensation and Rehabilitation Act to bring proceedings in relation to injuries allegedly sustained, despite non-compliance with the requirements of s 275 of the Act; the action is void and should be struck out: Dutney J.
Appeal Determined (QCA)[2007] QCA 130 [2007] 2 Qd R 55520 Apr 2007Appeal allowed and setting aside dismissal of the proceedings; primary judge struck out proceedings commenced inconsistently with Ch 5 Workers' Compensation and Rehabilitation Act; learned primary judge erred in failing to appreciate that there was a discretion to be exercised; the principal consideration relating to the noncompliance of the action with s 237(1) and s 250 is whether the infirmity in the appellant's title to sue is likely to be cured: Keane JA, Muir and P McMurdo JJ.

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Airservices Australia v Austral Pacific Group Ltd (1998) 157 ALR 125
1 citation
Jump To
Cite 1 - (1998) 157 ALR 125
Austral Pacific Group Ltd (in liq) v Airservices Australia [2000] HCA 39
2 citations
Jump To
Cite 1 - [2000] HCA 39
Cite 2 - [2000] HCA 39
Austral Pacific v Airservices Australia (2000) 203 CLR 136
4 citations
Jump To
Cite 1 - (2000) 203 CLR 136
Cite 2 - (2000) 203 CLR 136
Cite 3 - (2000) 203 CLR 136
Cite 4 - (2000) 203 CLR 136
Batistatos v Roads & Traffic Authority (2006) 226 CLR 250
1 citation
Jump To
Cite 1 - (2006) 226 CLR 250
Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256
1 citation
Jump To
Cite 1 - (2006) 226 CLR 256
Berowra Holdings Pty Ltd v Gordon [2006] HCA 32
10 citations
Jump To
Cite 1 - [2006] HCA 32
Cite 2 - [2006] HCA 32
Cite 3 - [2006] HCA 32
Cite 4 - [2006] HCA 32
Cite 5 - [2006] HCA 32
Cite 6 - [2006] HCA 32
Cite 7 - [2006] HCA 32
Cite 8 - [2006] HCA 32
Cite 9 - [2006] HCA 32
Cite 10 - [2006] HCA 32
Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364
17 citations
Jump To
Cite 1 - (2006) 225 CLR 364
Cite 2 - (2006) 225 CLR 364
Cite 3 - (2006) 225 CLR 364
Cite 4 - (2006) 225 CLR 364
Cite 5 - (2006) 225 CLR 364
Cite 6 - (2006) 225 CLR 364
Cite 7 - (2006) 225 CLR 364
Cite 8 - (2006) 225 CLR 364
Cite 9 - (2006) 225 CLR 364
Cite 10 - (2006) 225 CLR 364
Cite 11 - (2006) 225 CLR 364
Cite 12 - (2006) 225 CLR 364
Cite 13 - (2006) 225 CLR 364
Cite 14 - (2006) 225 CLR 364
Cite 15 - (2006) 225 CLR 364
Cite 16 - (2006) 225 CLR 364
Cite 17 - (2006) 225 CLR 364
Berowra Holdings Pty Ltd v Gordon (2006) 228 ALR 387
1 citation
Jump To
Cite 1 - (2006) 228 ALR 387
Bonser v Melnacis[2002] 1 Qd R 1; [2000] QCA 13
6 citations
Jump To
Cite 1 - [2000] QCA 13
Cite 2 - [2000] QCA 13
Cite 3 - [2002] 1 Qd R 1
Cite 4 - [2002] 1 Qd R 1
Cite 5 - [2002] 1 Qd R 1
Cite 6 - [2002] 1 Qd R 1
Brighton Und Refern Plaster Pty Ltd v Boardman [2006] 228 ALR 374
1 citation
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Cite 1 - [2006] 228 ALR 374
Brighton Und Refern Plaster Pty Ltd v Boardman [2006] HCA 33
3 citations
Jump To
Cite 1 - [2006] HCA 33
Cite 2 - [2006] HCA 33
Cite 3 - [2006] HCA 33
Brighton Und Refern Plaster Pty Ltd v Boardman (2006) 225 CLR 402
5 citations
Jump To
Cite 1 - (2006) 225 CLR 402
Cite 2 - (2006) 225 CLR 402
Cite 3 - (2006) 225 CLR 402
Cite 4 - (2006) 225 CLR 402
Cite 5 - (2006) 225 CLR 402
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
3 citations
Jump To
Cite 1 - (1996) 186 CLR 541
Cite 2 - (1996) 186 CLR 541
Cite 3 - (1996) 186 CLR 541
Brisbane South Regional Health Authority v Taylor [1996] HCA 25
1 citation
Jump To
Cite 1 - [1996] HCA 25
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
1 citation
Jump To
Cite 1 - (1949) 78 CLR 62
Georgiadis v Australian & Overseas Telecommunications Corporation (1994) 179 CLR 297
1 citation
Jump To
Cite 1 - (1994) 179 CLR 297
Gordon v Berowra Holdings Pty Ltd (2005) 62 NSWLR 427
3 citations
Jump To
Cite 1 - (2005) 62 NSWLR 427
Cite 2 - (2005) 62 NSWLR 427
Cite 3 - (2005) 62 NSWLR 427
Gordon v Berowra Holdings Pty Ltd (2005) NSWCA 27
1 citation
Jump To
Cite 1 - (2005) NSWCA 27
Hamling v Australia Meat Holdings Pty Ltd[2007] 1 Qd R 315; [2006] QCA 422
6 citations
Jump To
Cite 1 - [2006] QCA 422
Cite 2 - [2007] 1 Qd R 315
Cite 3 - [2007] 1 Qd R 315
Cite 4 - [2007] 1 Qd R 315
Cite 5 - [2007] 1 Qd R 315
Cite 6 - [2007] 1 Qd R 315
Hawthorne v Thiess Contractors P/L[2002] 2 Qd R 157; [2001] QCA 223
1 citation
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Cite 1 - [2002] 2 Qd R 157
Ketteman v Hansel Properties Ltd (1987) A.C 189
1 citation
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Cite 1 - (1987) A.C 189
Phipps v Australian Leisure Group [2006] QSC 327
3 citations
Jump To
Cite 1 - [2006] QSC 327
Cite 2 - [2006] QSC 327
Cite 3 - [2006] QSC 327
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
1 citation
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Cite 1 - (2003) 211 CLR 476
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
1 citation
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Cite 1 - (1998) 194 C.L.R 355
Roberts v Australia and New Zealand Banking Group Ltd[2006] 1 Qd R 482; [2005] QCA 470
6 citations
Jump To
Cite 1 - [2005] QCA 470
Cite 2 - [2006] 1 Qd R 482
Cite 3 - [2006] 1 Qd R 482
Cite 4 - [2006] 1 Qd R 482
Cite 5 - [2006] 1 Qd R 482
Cite 6 - [2006] 1 Qd R 482
Stone v ACE-IRM Insurance Broking Pty Ltd[2004] 1 Qd R 173; [2003] QCA 218
7 citations
Jump To
Cite 1 - [2003] QCA 218
Cite 2 - [2004] 1 Qd R 173
Cite 3 - [2004] 1 Qd R 173
Cite 4 - [2004] 1 Qd R 173
Cite 5 - [2004] 1 Qd R 173
Cite 6 - [2004] 1 Qd R 173
Cite 7 - [2004] 1 Qd R 173
Stone v ACE-IRM Insurance Broking Pty Ltd (2006) 225 ALR 364
1 citation
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Cite 1 - (2006) 225 ALR 364
Tanks v WorkCover Queensland [2001] QCA 103
8 citations
Jump To
Cite 1 - [2001] QCA 103
Cite 2 - [2001] QCA 103
Cite 3 - [2001] QCA 103
Cite 4 - [2001] QCA 103
Cite 5 - [2001] QCA 103
Cite 6 - [2001] QCA 103
Cite 7 - [2001] QCA 103
Cite 8 - [2001] QCA 103
Watkin v GRM International Pty Ltd[2007] 1 Qd R 389; [2006] QCA 382
1 citation
Jump To
Cite 1 - [2007] 1 Qd R 389
Wigan v Edwards (1973) 47 ALJR 586
1 citation
Jump To
Cite 1 - (1973) 47 ALJR 586
Wilson v Nattrass (1995) 21 MVR 41
1 citation
Jump To
Cite 1 - (1995) 21 MVR 41
Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd (1978) 139 C. L. R. 410
1 citation
Jump To
Cite 1 - (1978) 139 C. L. R. 410
Yango Pastoral Company Pty Ltd v First Chicago Australia Limited (2006) 225 CLR 304
1 citation
Jump To
Cite 1 - (2006) 225 CLR 304

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Kiymaz v Davies[2009] 1 Qd R 14; [2008] QSC 2997 citations
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Pertzel v Qld Paulownia Forests Ltd & Anor [2008] QDC 91 citation
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Ryan v WorkCover Queensland [2007] QDC 3152 citations
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Semmler v Coles Group Ltd[2008] 2 Qd R 556; [2008] QSC 1525 citations
SS Family Pty Ltd v WorkCover Queensland[2019] 3 Qd R 81; [2018] QCA 2961 citation
Stanley-Clarke v Boyle [2012] QSC 1962 citations
Taylor v Queensland Law Society Incorporated [2011] QSC 82 citations
Ure v Robertson[2017] 2 Qd R 566; [2017] QCA 201 citation
Walker-Eyre v Emirates [2012] QDC 3642 citations
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1

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