McConnell v Kewcliff Pty Ltd[2000] QDC 390

CIVIL JURISDICTION

JUDGE ROBIN QC

and

and

MAROOCHYDORE

DATE 02/10/2000

ORDER/REASONS

CATCHWORDS

Workers Compensation Act 1990 S 182D – defendant employers apply unsuccessfully under 293 of the Uniform Civil Procedure Rules for summary judgment dismissing plaintiff worker's personal injury damages claim – plaintiff had not applied for a certificate under S 182D – issue was whether there was any “approved form” as referred to in S 182D – instructions at top of the form the defendants claimed could be used limited its use to workers “who have not previously lodged an application for compensation” – the plaintiff had lodged such an application.

HIS HONOUR: Although only the first defendant appears to have filed a defence, the second defendant is said to join with it in an application under Rule 293 for judgment in the action dismissing the plaintiff's claim.

The first defendant was his conventional employer but it was, I am told, a subcontractor to the second defendant which for present purposes may also be regarded as an employer.

There is nothing about Rule 293 that says the defendant must have filed a notice of intention to defend and defence to take advantage of Rule 293. In the circumstances, it is convenient to assume there is no impediment.

Section 182D of the Workers Compensation Act 1990 as amended limits access to the Courts by injured workers seeking damages for an injury suffered after its commencement. Action is permitted against an employer only if the Board has given the worker a certificate under the section. A worker who has received an offer of lump sum compensation under section 132 is in a different category.

The present plaintiff, Mr McConnell, has not received an offer or a certificate in respect of his work injury on 19 April 1996. He has not even made application for such a certificate.

The Court of Appeal, as I understand it, in Neuss v. Roach Brothers Proprietary Limited (2000) QCA 130 has authoritatively determined that where there was no “approved form” as referred to in section 182D subsection (2), a worker was effectively exempted from the requirement under the section to have a certificate as a condition of instituting a claim for damages at law.

The Court of Appeal in Mears v. Coles Myer Limited (2000) QCA 342 had to consider Neuss. In paragraph 23 of her reasons, which constituted those of a majority, the President dissenting, Holmes J referred to Neuss and said, “The Court's conclusion was that the memorandum failed for reasons concerning the content of the proposed forms and the lack of evidence as to the authority of the officer issuing the memorandum to effect the requisite approval of the forms. However, in July 1997 further attempt was made at approving a form entitled ‘Application for Damages Certificate’. It's not argued in the present case that there were deficiencies in that form or that it was not approved by the Chief Executive Officer”.

Mr Grant-Taylor for the plaintiff in these proceedings does argue there is a relevant “deficiency” in the form which made it inapplicable in Mr McConnell's case, so that he enjoyed the same exemption as was available to Neuss.

The point focuses on an instruction in bold type at the head of the form immediately below the name of the form in the following terms: “This form is to be completed by persons considering seeking damages who have not previously lodged an application for compensation”.

Mr McConnell is a person who had previously lodged an application for compensation. Mr Wynne's affidavit shows that on 3 May 1996 WorkCover received an application for worker's compensation by him dated 29 April 1996 in respect of “the said alleged injury”.

Mr McDougall who appears for the applicants submits that the words in the instruction, “who have not previously lodged an application for compensation”, may be disregarded. He claims that Ms Hamblin's affidavit, which recounts the history of the development of forms, indicates that had Mr McConnell troubled to inquire about making an application for a damages certificate, this is the form he would have been supplied with.

I think Mr Grant-Taylor is right in urging on the Court a reading of Ms Hamblin's affidavit which does not render the subject form of general usefulness, although perhaps it should have been: it is hard to see any reason for the inclusion of the words Mr McDougall submits have no effect.

Even if Ms Hamblin's affidavit had gone as far as is claimed by Mr McDougall, it seems to me this would simply be an instance of a form which by its terms is not to be used being made available in the absence of anything appropriate as a practical course. Had Mr Mcconnell used it, it could not be said to be approved for use in his circumstances.

It is now too late in this context for the approach to be taken that persons requiring a certificate ought to devise an appropriate form of application for themselves if there is no identifiable approved one.

The test which a defendant must meet to satisfy Rule 293, it seems to me, must be a fairly rigorous one. The defendant ought to be able to show clearly, for example, the existence of the conditions mentioned in paragraphs (a), (b) and (c) of subrule (2).

In my judgment, the defendant applicants have simply not shown clearly enough that section 182D in the circumstances and in light of the Court of Appeal decisions mentioned renders the plaintiff's claim so defective that it can be said at this stage there ought not to be a trial.

For those reasons, I refuse the defendants' application.

MR GRANT-TAYLOR: I'd ask for costs, if your Honour pleases.

MR McDOUGALL: I've got no argument in response, your Honour.

HIS HONOUR: I order the defendants to pay the costs of it to be assessed on the standard basis.

MR GRANT-TAYLOR: May it please your Honour. I'd also seek those costs reserved by his Honour Judge Dodds on 18 September.

MR McDOUGALL: I can't argue that so-----

HIS HONOUR: And including costs reserved by Judge Dodds on 18 September.

MR GRANT-TAYLOR: May it please your Honour.

HIS HONOUR: Thanks, gentlemen.