WorkCover Queensland v Tuckey
[2003] QDC 139
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- Unreported Judgment
- WorkCover Queensland v Tuckey[2003] QDC 139
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WorkCover Queensland v Tuckey[2003] QDC 139
WorkCover Queensland v Tuckey[2003] QDC 139
DISTRICT COURT | No 301 of 2003 |
CIVIL JURISDICTION
SENIOR JUDGE SKOIEN
WORKCOVER QUEENSLAND | Plaintiff |
and
CHAD WILLIAM TUCKEY and ANN MARGARET RITTWAY TRADING AS AROUND AUSTRALIA CONCRETING AND LANDSCAPING SERVICES ABN 89 796 367 126 | Defendant |
BRISBANE
DATE 15/05/2003
JUDGMENT
HIS HONOUR: This is an application by the plaintiff for summary judgment.
The action is brought pursuant to section 61 of the WorkCover Queensland Act 1996. That section creates a statutory cause of action allowing the applicant to recover compensation paid to an injured worker along with the statutory penalty of an additional 50 per cent of the compensation if the worker is injured at a time when the employer is in contravention of section 52 of the Act in relation to that worker.
Section 52 of the Act deals with the obligation of an employer to obtain an insurance policy from the applicant. It provides that every employer must maintain insurance with the applicant for each worker employed by him.
Importantly, section 54 provides that an employer in the position of the respondent/defendant contravenes section 52 if:
“Before or immediately after the employer starts to employ any worker...the employer does not apply, in the approved form, to WorkCover for the policy required under section 52”.
The sworn material before me establishes that the respondent's employee, Phillips, was injured on 16th May 2001. The application for worker's compensation is exhibited to an affidavit of Mr Gill, an employee of WorkCover. It was filed with the Toowoomba WorkCover Office on 17 May 2001 and records that the worker was first employed in Queensland on the 16th of May 2001.
There is an affidavit sworn by the injured worker, Phillips, who swears that in April 2001 he was approached by the respondent who asked him if he would go and work for him and he said he would. He does not specifically identify the date on which he first began to work for the respondent but, by implication, it appears to be sometime in April 2001. However, the affidavit contains this:
“7. At the date of my accident I had been working with Chad Tuckey for three weeks”.
That is a perfectly clear statement that the employment had been in existence for three weeks at the date of the accident and at the date of the application for insurance. I am quite unable to see that the term, “immediately after” as it appears in section 54, could be held to incorporate a delay of three weeks. Certainly nothing sworn is placed before me to indicate any basis for an argument along those lines. Indeed, I would be very surprised if, factually, that could be the case. We are talking about employment in or near the City of Toowoomba at which, on the material, there is a WorkCover Office where Australia Post, despite its notorious delays, operates.
The submission of counsel for the respondent/defendant to the application is that there is an arguable question of fact for the trial, namely, whether or not the application was made immediately after the commencement of employment. For the reasons I have just related, I do not consider that there is any real prospect of success on that question of fact.
The other matter raised by counsel for the respondent sets up a possible defence based on an estoppel. The problem with that is that there is absolutely nothing sworn before me on which such an estoppel could be based. Nothing is placed before me to show what detriment the respondent has suffered nor even that the respondent has relied on any particular thing. The mere fact that a certificate of insurance was issued contemplating the commencement of employment as at 16 May could not possibly fall within that description. The certificate was simply issued in reliance on an erroneous and misleading application form.
The rule under which this application was brought is 292 of the Uniform Civil Procedure Rules. This rule has been the subject of judicial discussion, recently from the Court of Appeal in Bernstrom v. National Bank Australia Limited BC200203547, a judgment delivered on 28 June 2002. In that decision the Court of Appeal adopts the test laid down by Lord Wolfe in Swaine v. Hillman, the crux being that the necessity is to see whether there is a “realistic” as opposed to a “fanciful” prospect of success.
I am unable to conclude that the defendant/respondent has a realistic prospect of success. The possibility of the matters raised on his behalf are, to my view, fanciful.
The application should succeed and I therefore give judgment for the applicant/plaintiff for the sum claimed, $71,975.73, with interest from 12 November 2002.
...
HIS HONOUR: There will be interest on that sum from 12 November 2002 at the rate of nine per cent.
...
HIS HONOUR: I will initial this draft and place it with the papers.