Cockburn v Hyne & Sons Pty Ltd
[1999] QDC 252
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- Unreported Judgment
- Cockburn v Hyne & Sons Pty Ltd[1999] QDC 252
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Cockburn v Hyne & Sons Pty Ltd[1999] QDC 252
Cockburn v Hyne & Sons Pty Ltd[1999] QDC 252
IN THE DISTRICT COURT HELD AT MAROOCHYDORE IN QUEENSLAND | Plaint No. 17 of 1999 |
[Before Dodds DCJ]
[John Trevor Cockburn v. Hyne & Sons Pty Ltd]
BETWEEN:
JOHN TREVOR COCKBURN Applicant
AND:
HYNE & SONS PTY LTD Respondent
(ACN 009 660 995)
Reasons for Judgment
Judgement delivered: 20 September 1999
Counsel: | Mr SJ Given for the applicant |
Mr KF Holyoak for the respondent | |
Solicitors: | Morton & Morton for the applicant |
Minter Ellison for the respondent | |
Hearing date: | 15 September 1999 |
IN THE DISTRICT COURT HELD AT MAROOCHYDORE IN QUEENSLAND | Plaint No. 17 of 1999 |
[Before Dodds DCJ]
[John Trevor Cockburn v. Hyne & Sons Pty Ltd]
BETWEEN:
JOHN TREVOR COCKBURN | Applicant |
AND:
HYNE & SON PTY LTD (ACN 009 660 995) | Respondent |
Reasons for judgment
In this application the plaintiff seeks leave to amend his plaint.
On 15 February 1999 the plaintiff sued the defendant for damages for injury said to have been caused to his back due to being required to carry out repetitive heavy lifting activities in the course of his employment. He alleged that he commenced employment with the defendant in September 1987 and that the injuries to his spine resulted in the onset of back pain in or about September 1996.
The plaintiff is a worker who has not received an offer of lump sum compensation under s.132 of the Workers Compensation Act 1990 (the Act). Consequently he could only “seek damages at law” for an injury suffered after the commencement (1 January 1996) if the Board were to give him a certificate under s. 182B of that Act.
This application was argued on the basis that no certificate had been issued prior to commencement of the action and that I was not concerned with any question of a limitation period.
There are a number of authorities which have held that the certificate is “an essential prerequisite” to the issue of proceedings (Mears v. Coles-Myer Pty Ltd (unreported Shepardson J Supreme Court 18 August 1999)); its absence is “an absolute bar to the action” (Sheward v. Toowoomba City Council (unreported McGill DCJ 15 December 1998)); “the plaintiff cannot seek damages at law” (Short v. Michaliczac (unreported McMurdo DCJ 22 May 1998)); “disqualifies a worker from commencing an action seeking damages” (Hermann v. Buzza (unreported Wylie QC DCJ 12 June 1998)).
To commence an action which is prohibited from being commenced does not create an existing action. The apparent action is a nullity: Fitzpatrick v. Jackson (1989) 2 QdR 542. Thus the action in so for as it relates to a period subsequent to 1 January 1996 is a nullity.
On 21 July 1999 the solicitors for the defendant pointed out to the solicitors for the plaintiff that the action purported to relate to repetitive strain injury which manifested itself in or about September 1996 and that no certificate had been issued by Workcover prior to the commencement of the action. They requested the action be discontinued.
Correspondence ensued culminating in Workcover issuing a conditional damages certificate on 22 August 1999: S.182B (4) of the Act. Section 182B(5) of the Act provides that in that circumstance “the worker may start proceedings at law for damages for the injury but proceedings are stayed until the Board makes the certificate unconditional”.
This application sought to add to the existing plaint, that on 27 August 1999, Workcover Queensland had issued a conditional damages certificate entitling the plaintiff to pursue a claim for any injuries caused to the plaintiff between 1 January 1996 and 17 September 1996.
Counsel for the plaintiff submitted that the plaint was not a nullity because it related not only to a period subsequent to 1 January 1996 but also to a period from the plaintiff's commencement of employment until 31 December 1995. He submitted that Rule 375(1) of the Uniform Civil Procedure Rules permitted the amendment sought to extend the existing cause of action to the period 1 January 1996 to September 1996. Alternatively he submitted that Rule 376(4) permitted the addition of a new cause of action which arose out of substantially the same facts.
Counsel for the respondent submitted that any amendment is deemed to be an amendment from the time the proceeding commenced and the effect of allowing the amendment would be tantamount to recognising the existence of a nullity. He submitted the application should be dismissed.
Rule 375 and 376 of the Uniform Civil Procedure Rules are relevant. Rule 375 provides:
- (1)At any stage of the proceeding the court may allow or direct a party to amend a claim, anything written on a claim, a pleading, an application or a document in a proceeding in the way, and on the conditions the court considers appropriate.
- (2)Subject to Rule 376, 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.
Rule 376 applies to cases where an application for leave to make an amendment is made after the end of a relevant period of limitation which was current at the date the proceeding was started. Rule 376(1), (2), (3) and (4) are in similar terms to Order 32 rules 2, 3, 4 and 5 of the Rules of the Supreme Court (now repealed). Rule 376(5) is additional and provides that Rule 376 “does not limit the court's powers under Rule 375”. The addition of rule 376(5) means that the Uniform Civil Procedure Rules are now similar to the New South Wales rules applied in McGee v. Yeomans (1977) 1 NSWLR 273 where the court held that the rules provided “a general discretion to allow an amendment not withstanding that it raises a barred course of action whenever justice so requires”: at 280. In Adam v. Shiavon (1985) 1 QdR 1 the Full Court in Queensland took a similar view although the equivalent of Rule 376(5), was not included in Order 32. A different view was taken in Lynch v. Keddell (1985) 2 QdR 103 which involved an application to join a defendant after the expiration of a limitation period. It was held that such an application was pursuant to Order 3 Rule 11 rather than Order 32 and the courts discretion was limited as described in Archie v. Archie; Smythe (Third Party) (1980) QdR 546.
I think the plaintiff's application should be characterised as seeking an amendment to include a cause of action arising after the proceeding was started. That is because until the plaintiff obtained the certificate, he did not have a cause of action with respect to any injury suffered after 1 January 1996. The certificate was essential. His cause of action with respect to that period did not exist without it. I have regarded the cause of action as including “every fact which is material to be proved to entitle the plaintiff's to succeed, every fact which the defendant would have a right to traverse”: Cook v. Gill (1873) LR 8 CP 107.
It seems to me that any action so far as it relates to the period 1 January 1996 to September 1996 arises out of the same facts or substantially the same facts as the action for which relief has been claimed in the plaint which exists for the period prior to 1 January 1996. Rule 387(2) provides that an amendment including or substituting a cause of action arising after the proceeding started takes effect on and from the date of the order giving leave. In that case there is neither resurrection of a nullity nor abrogation of Sections 182A - 182E of the Act.
I record that in applying the rules in this way I have had regard to Rule 5(2) in particular, which provides that “these rules are to be applied by the courts with the objective of avoiding undue delay expense and technicality and facilitating the purpose of these rules”.
I order the plaintiff be granted leave to file an amended plaint in terms of the amended plaint annexed to the application and marked with the letter ‘A’. In accordance with Rule 387(2) the amendment will take affect on the date of this order.
I order the costs of the application be reserved.