Strudwick v Selby[1999] QDC 280

CIVIL JURISDICTION

JUDGE MCGILL SC

and

BRISBANE

DATE 15/10/99

JUDGMENT

HIS HONOUR: I extend the time for service of the plaint until 30 May 2000. The application is otherwise refused. I publish my reasons.

Briefly, I concluded that there is no cause of action against WorkCover at this time, so there is no point in joining WorkCover as a second defendant. The plaint could be reserved if the time for service of the plaint were extended. That could be done under section 135 of the Supreme Court of Queensland Act 1991 and that has been done.

I make no order as to costs of the application.

REGISTRY: BRISBANE

PLAINT: 222 OF 1997

AND

JUDGMENT - McGILL D.C.J.

Judgment Delivered: 15 October 1999

REGISTRY: BRISBANE

PLAINT: 222 OF 1997

AND

JUDGMENT - McGILL D.C.J.

Delivered the 15^th day of October 1999

This is an application to join WorkCover Queensland as second defendant to the plaintiff's action, and to renew the plaint in order to enable WorkCover to be reserved. The latter relief is not sought in a summons which was filed on 29 June 1999, but the summons does seek “such other orders as the court deems appropriate” and evidently notice of intention to seek this order was given to the respondents' representatives, as no point was taken about seeking this relief before me, and the respondents argued that part of the application on its merits. In order to understand the position it is necessary to set out some of the background.

Background

By a plaint filed on 30 May 1997, the plaintiff claimed damages from the defendant in respect of injury alleged to have been suffered by the plaintiff on 3 June 1994. The plaint alleges that the plaintiff was employed by the defendant in the capacity of night watchman and caretaker at a home unit complex managed by the defendant and that in the course of that employment the plaintiff suffered injury as a result of the negligence or breach of contract or breach of statutory duty of the defendant. The facts are a little unusual, but not, I think, relevant; it is sufficient to say that there is a denial that there was a relevant employment relationship, or that any injury suffered to the plaintiff arose out of it, or that the plaintiff's injury occurred in the circumstances alleged. The plaintiff was paid workers' compensation in respect of his injuries, but the Board had subsequently recovered the amount of such payments from the defendant. The Workers' Compensation Board was served with a copy of the plaint on 11 July 1997, but this was outside the mandatory 28 day period provided in s. 185(1)(c) of the Workers' Compensation Act 1990. The defendant was served within time, and indeed an Entry of Appearance and Defence on his behalf was filed on 1 September 1997. There was then a relatively long period of inactivity before this summons was filed in June 1999.

Renewal Of The Plaint

The failure to serve the Board within the 28 day period produces a situation which has been described as “an effective clog on the action”: Moore v. Boyne Smelters Ltd [1998] 1 Qd.R. 649, where Demack J in similar circumstances renewed a writ under O.9 r. 1(1) of the Supreme Court Rules in order to enable the writ to be reserved on the defendant and then served on the Board within 28 days after service of the defendant. I accept on the basis of that decision that that would be sufficient compliance with s. 185 to enable the action to proceed. Subject to complications produced by the commencement of the Uniform Civil Procedure Rules no argument was advanced as to why the plaint should not be renewed in order to enable the procedure in Moore to be followed in this case.

The difficulty arising from the commencement of the Uniform Civil Procedure Rules is that the power under the District Court Rules in Division 3 of Part 5 to renew a plaint has gone with the expiration of those rules (Supreme Court of Queensland Act 1991 s. 118B(2)(b)(v)), while the power under Uniform Civil Procedure Rules is to renew a claim: r. 24. There is the further complication that the District Court Rules and the Uniform Civil Procedure Rules contain provisions for renewal by the registrar, but I think this is because a separate provision for renewal by a court is unnecessary in view of the general power of a court under the District Court Rules (r. 375) and now under the Uniform Civil Procedure Rules (r. 7) to extend time or to apply so as to permit the court to extend the period of 12 months during which a plaint (or a claim) remains available for service.

There is no general transitional provision to the effect that anything done under the former rules is to be treated for the purposes of the new rules as if it had been done under the equivalent provisions of the new rules. It may have been thought that the differences between the rules made such a provision cumbersome. Effectively, the transitional provision is in s. 135 of the Supreme Court of Queensland Act 1991 inserted by s. 24 of the Civil Justice Reform Act 1998. Subsection (1) provides that on the commencement of the Uniform Civil Procedure Rules they apply to the next step or application in the proceeding pending in the District Court that can reasonably be taken in compliance with those rules. Subsection (2) provides:

This provision was obviously intended to have broad and remedial application, to enable a court to make whatever order was necessary to overcome any difficulty created by the changeover in the rules. It seems to me that if, but for that changeover, it would have been appropriate for the plaint to have been renewed so as to enable it now to be reserved on the defendant and then served on the Board within the statutory period, any difficulty in producing that result caused by the commencement of the new rules can be overcome by my making the appropriate order under s. 135(2) of the Supreme Court of Queensland Act 1991. Accordingly, I order that the period within which the plaint filed the 30^th day of May 1997 is to be served on the defendant is extended to 30 May 2000. That will give the plaintiff's solicitors plenty of time to reserve the defendant, and then serve the Board within the 28 day period, so that the action can proceed.

Joinder Of WorkCover

The proposal to join WorkCover was based on the proposition that there is a cause of action against WorkCover given by s. 183(1)(d) of the Workers' Compensation Act 1990. That section is as follows:

One effect of this section is that a court when giving judgment in an action against an employer deducts from the amount which would otherwise be given the amount paid or payable by way of workers' compensation, but it was also submitted that the section gave a cause of action against the Workers' Compensation Board of Queensland on the basis that the Board was responsible for the workers' compensation fund from which the amount of such damages is to be paid under para. (d). One difficulty with this argument is that under s. 36(2) administration of the fund is in the hands of the Treasurer of Queensland, and there seems to be no provision saying that any entitlement to be paid money out of the fund is to be enforced by action against the Board.

Section 184 provides:

That provision suggests that the court trying for example the present action may well be able to make a determination which is binding on the board, but only in relation to the amount of compensation payable in respect of the injury and hence the amount to be deducted under s. 183. I suspect the purpose of the section is to ensure that once a court makes a determination of the amount to be deducted under s. 183, that determination will be binding in terms of the correct entitlement to pay compensation, so that neither party is to be exposed to a later determination by someone else that the amount actually payable by way of compensation was different: Fechner v. Yerkovich [1993] 1 Qd.R. 258.

Reliance was placed on a decision in the Federal Court in FAI Insurances Ltd v. Zoric (1991) 28 FCR 250, where the court held that there was a cause of action in a workman to proceed against the employer's insurer to recover the amount of a judgment awarded against the employer, pursuant to the Workers' Compensation Act 1951 (ACT). Reference was made to authority that the position was similar under New South Wales legislation: Spain v. Metropolitan Meat Industry Board [1971] 1 NSWLR 91. A difficulty for the applicant/plaintiff however is that both of those cases speak about a right to proceed against the insurer in circumstances where the amount of damages is the subject of an order, decision or award made against the employer and there has been default in the part of the employer in paying that amount: Zoric at p. 265. That suggests that there is no cause of action against the insurer until there has been judgment against the employer, a situation which has not yet arisen in this action.

In Spain (supra) Isaacs J said at p. 102, after referring to authorities that there was no cause of action in the worker to recover statutory compensation from the insurer until the amount was quantified as against the employer:

Since that point had not been reached, the employee had no direct cause of action against the insurer.

The provisions of s. 183(1)(d) are similar to those of s. 9A(1)(b) of the Workers' Compensation Act 1916 which was repealed and replaced by the 1990 Act. It has been said that s. 183 should be read in a similar way to s. 9A of the previous Act: Dodds v. North Queensland Electricity Board (Cullinane J, 14.2.97, unreported). It has been held under the 1916 Act that the effect of s. 9A(1) was that “an injured worker, who establishes by action an entitlement to common law damages, is entitled to have that judgment satisfied out of the fund, whether or not at the material time the employer/defendant was insured under a policy of “accident insurance” of the type referred to in the Act.”:Ex parte Workers' Compensation Board of Queensland [1982] Qd.R. 738 at 746-7. His Honour in that case noted at p. 741 that counsel for the respondent had submitted that a successful plaintiff “could call on the Treasurer pursuant to s. 5 of the Act to have the judgment satisfied out of the fund, and submitted that the Treasurer would be legally obliged to make such payment out of the fund.”

It seems to me in the light of these cases that s. 183(1)(d) probably does give a good cause of action to recover from the fund the amount of damages awarded against the employer, although it is, I think, not necessary for me to decide that, since it seems to me that any such cause of action only arises once damages have been assessed and awarded by the court. It also seems to me that any such cause of action is properly brought against the Treasurer, or perhaps the State of Queensland, rather than the Board. There is therefore no cause of action available against the proposed second defendant which could be the subject of a claim to be added to the claim against the defendant. It is unnecessary for me to consider whether there might be some relief available in equity, for example by declaration, in anticipation of a judgment against the defendant, because if such cause of action is available it cannot be litigated in this court, in the absence of a cause of action for a money sum.

Claims for declarations can be brought in the District Court if the matter can be brought within s. 69, but that depends upon there being a matter in which jurisdiction is already given under s. 68 (or some other statute). There is jurisdiction for the claim against the existing defendant because it is a personal action where the amount sought to be recovered does not exceed the monetary limit, but if there is no equivalent cause of action against the proposed second defendant, s. 68(1)(a) will not apply. None of the specified matters in s. 68(1)(b) apply so that a claim could not now be issued out of the District Court simply seeking declarations that if a judgment is obtained against the defendant, that judgment has to be satisfied out of the fund. That is in substance the relief now sought to be claimed against the second defendant if joined as a defendant in the present proceedings.

Rule 62 of the Uniform Civil Procedure Rules provides that each person whose presence is necessary to enable the court to adjudicate effectively and completely on all matters in dispute in a proceeding must be included as a party to the proceeding, but that rule, I think, must be applied by considering whether, in the absence of the party proposed to be joined, the matters in dispute in the existing proceeding could be effectually and completely adjudicated: FAI General Insurance Co Ltd v. Interchase Corporation Ltd (Appeal 4241/97, Court of Appeal, 14.7.98, unreported per McPherson JA. In other words, if there is a proceeding where A claims against B certain relief, and it is sought to join C, the question is not whether all matters in the dispute between A, B and C can be effectually and completely adjudicated in the absence of C, but whether all matters in the dispute between A and B can be effectually and completely adjudicated in the absence of C. Applying that approach in the present case, it seems to me there is no difficulty in adjudicating all matters in dispute between the present plaintiff and defendant in the absence of WorkCover, whose presence is not necessary for that purpose. The plaintiff could not rely on r.65, in the absence of a separate cause of action available by the plaintiff against WorkCover which is within the jurisdiction of this court. The power to add a defendant in r.69(1)(b)(i) corresponds to r.62(1); subparagraph (ii) is somewhat wider, but still depends on the capacity to adjudicate on all matters in dispute “connected with the proceedings”, which must be the proceedings as they exist without the addition of the proposed extra defendant. Again, it seems to me that the joinder of WorkCover does not satisfy that test because there is no matter in dispute between the defendant and the proposed defendant, nor can there yet be any matter in dispute between the plaintiff and the proposed defendant.

Counsel for the plaintiff referred me to the decision of the Court of Appeal in De Innocentis v. Brisbane City Council (Appeal 12032/98, Court of Appeal, 24.9.99, unreported). That case dealt with an application to join a licenced insurer who ought to have been joined as required by s. 52 of the Motor Accident Insurance Act 1994, but who was not. Clearly, where the statute required that the action be brought “against the insured person and the insurer as joint defendants” the insurer is a person whose presence is necessary to enable the court to adjudicate effectually and completely all matters in dispute in the proceeding” and is therefore properly joined as was held by the Court of Appeal. There is no equivalent provision in the Workers' Compensation Act 1990; the Board could, under s. 195(3) elect to join as a party to the action, but there is no suggestion such an action cannot proceed effectually in the absence of such election, and it is very common that they do.

In my opinion, the applicant has not shown that it would be appropriate to join WorkCover Queensland as second defendant in the action and that part of the relief in the summons is refused. I will however, as foreshadowed earlier, extend the time limited for service of the plaint until 30 May 2000. In relation to the part of the application which was contentious the plaintiff has been unsuccessful, and in respect of the relief which has been ordered, the plaintiff really required the indulgence of the court, so in all the circumstances the applicant/plaintiff should pay the respondent's costs of the application to be assessed in any event.

I should say that the practical reason for a desire to join WorkCover seems to be concern that it will wish to dispute the existence of the employment relationship and the proposition that any injury suffered by the plaintiff was suffered in the course of that employment. If WorkCover adopts that attitude, it may refuse to have anything to do with the proceedings, which would be either defended by Mr. Selby or not defended at all, although so for at least an Entry of Appearance and Defence has been filed. The plaintiff's concern is that he might obtain a judgment against Mr. Selby, but then be met with a refusal to satisfy that out of the fund, and have to take separate action at that point. That may well be right, and it may mean that the plaintiff has, in effect, to litigate the claim twice, but if the plaintiff has no cause of action now against WorkCover Queensland, that consequence cannot be avoided in the way sought to be achieved by this application.