Goerecke v State of Queensland
[2004] QDC 273
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- Goerecke v State of Queensland[2004] QDC 273
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Goerecke v State of Queensland[2004] QDC 273
Goerecke v State of Queensland[2004] QDC 273
DISTRICT COURT OF QUEENSLAND |
CITATION: Goerecke v State of Queensland [2004] QDC 273
PARTIES:
KEVIN ROSS GOERECKE | Applicant |
v
STATE OF QUEENSLAND | Respondent |
FILE NO/S: D1576/2004
DIVISION:
PROCEEDING: Originating application
ORIGINATING COURT: District Court, Brisbane
DELIVERED ON: 11 June 2004
DELIVERED AT: Brisbane
HEARING DATE: 11 June 2004
JUDGE: McGill DCJ
ORDER: Action struck out with costs.
CATCHWORDS:
EMPLOYMENT LAW - Injury of employee - pre-litigation procedure - whether plaintiff entitled to commence action.
WorkCover Queensland Act 1996 ss 280, 302
COUNSEL: | J A Griffen QC for the applicant M Grant-Taylor SC for the respondent. |
SOLICITORS: |
DISTRICT COURT | No 1576 of 2004 |
CIVIL JURISDICTION
JUDGE McGILL SC
KEVIN ROSS GOERECKE | Applicant |
and
STATE OF QUEENSLAND | Respondent |
BRISBANE
..DATE 11/06/2004
ORDER
HIS HONOUR: The position in this matter is that the applicant has run into difficulties in attempting to comply with the pre-litigation requirements of the WorkCover Queensland Act 1996. He gave a notice of claim for damages under that Act in August 2002 and on the 30th of August 2002 an order was made, by consent, in this Court that he have leave pursuant to section 305(1) to commence proceedings for damages in relation to injuries sustained between 6 September 1999 and 22 January 2001 inclusive in the course of his employment, despite non-compliance with section 280 of the Act.
There was a condition imposed and a further order that the proceedings be stayed until all of the requirements of chapter 5, parts 5 and 6 of the Act have been complied with. That was an order made under section 305(1) and therefore one of the requirements of section 302 of the Act have been satisfied. However, section 305(1) is made subject to section 303 and section 303 is a separate requirement specified in section 302. It appears therefore, that is necessary to comply with section 303, even if leave is given under section 305(1).
The practical effect of the grant of leave is that it triggers an extension of the period of the limitation under section 308(1)(a)(iv) of the Act so that the urgency, which otherwise would have arisen because of the imminent expiration of the limitation period, goes away. However, it does not remove the limitation in section 303 which provides that proceedings may be started only after one of four things has occurred.
Section 302 provides expressly that a claimant may start a proceeding in a Court for damages only if the claimant has complied with relevantly, section 303, and therefore a failure to comply with section 303, means that the proceedings have been commenced in contravention of direct prohibition of the Act and are therefore liable to be struck out.
The issue then becomes whether any of the requirements of section 303 had been satisfied. The Court had made an order under section 305 which is one of the requirements of section 303(a), but the other is that at least six months, or for a terminal condition, three months, elapsed after that order was made and the proceedings, in this case, were commenced only a few days after the order of 30 September 2002 was made.
The second possible requirement is that WorkCover had denied liability on the part of the employer. That has occurred, but it did not occur until after the proceedings were commenced. It follows that, at the time when the proceedings were commenced, section 303 had not been complied with and the proceedings then commenced were in breach of the prohibition in section 302.
In those circumstances, they are liable to be struck out and it would not be appropriate to make a declaration that the plaintiff was at liberty to commence proceedings on the 5th of September 2002. It follows that it is not necessary to determine whether those proceedings were being properly served or whether the effect of what later occurred means that they cannot now be served. The proceedings are liable to be struck out and there is no question of giving any relief by which they can be resuscitated.
Indeed, I think the appropriate order to make, in the circumstances, is that the proceedings D3696 of 2002 be struck out and I will also order that the application, which has been treated by the Registry as an originating application number 1576 of 2004, be treated as an application filed in the proceedings, previously commenced in September 2002, being D3696 of 2002. Otherwise the application is dismissed with costs.
...
HIS HONOUR: The action is struck out and I will order the applicant or the plaintiff to pay the defendant's costs of the action, including this application to be assessed.
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