Graham v WorkCover Queensland
[2005] QDC 263
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- Unreported Judgment
- Graham v WorkCover Queensland[2005] QDC 263
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Graham v WorkCover Queensland[2005] QDC 263
Graham v WorkCover Queensland[2005] QDC 263
[2005] QDC 263
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
No 1266 of 2004
ALISTAIR GRAHAM | Applicant |
and |
|
WORKCOVER QUEENSLAND | Respondent |
BRISBANE |
|
DATE 24/08/2005 |
|
ORDER |
|
CATCHWORDS: | WorkCover Queensland Act 1996 s 305, s 325(4) - a judge's order for leave to start a proceeding under s 305 was expressly conditional upon an extension of the limitation period being applied for and obtained within 3 months, and lodging of a Notice of Claim within four months - the latter condition was expressly "subject to any relaxation ... subsequently granted by a court" - neither condition was satisfied or attempted to be satisfied in time - held too late to seek relaxation after expiration of the time - if rule 7 of the UCPR was available, it should not be used - respondent's costs of unsuccessful application for "relaxation" refused. |
HIS HONOUR: On the 14th of April 2004 Judge McGill SC made an order which was taken out a week later. By consent of the parties, it provided:
"1.That the applicant be granted leave pursuant to Section 305 of the [WorkCover Queensland Act 1996] to start proceedings against the Respondent for damages for injuries sustained during the course of employment over a period of time 10 April 2001 and 13 April 2001 ("the period") despite non-compliance with the requirements of Section 280 of the Act, subject to the Applicant applying for and being granted an extension of the limitation period for the period within three (3) months of the date of this Order.
- Such leave is granted on the condition that subject to any relaxation from the same which may
subsequently be granted by a Court, the Applicant will lodge a Notice of Claim within four (4) months of the date of this Order.
- Subject to these Orders, each party will comply with the following:-
3.1 The relevant division under Part 2 of Chapter 5 of the Act;
3.2 The requirements of Part 5 of Chapter 5 of the Act;
3.3 Compliance with the requirements of Part 6 of Chapter 5 of the Act; and
3.4 Section 303 of the Act.
- That the Applicant pay WorkCover Queensland's costs fixed at $500.00."
The underlying circumstance, a back injury which the applicant, Mr Graham says he sustained in about April 2001 was the subject of a workers' compensation claim completed by him around that time. Unfortunately, neither the condition set out in paragraph 2 of the order nor that set out in paragraph 3 was satisfied or even attempted to be satisfied. There was no application made for an extension of the limitation period.
The explanation for that surprising failure lies in practical problems of resources available in the legal office which inherited Mr Graham's file and a number of others and turnover of legal personnel. Mr Graham was said to have been in no way personally to blame. It was suggested that the respondent's failure to supply material on request meant that any timely Notice of Claim may have been of limited value, but I do not think that amounts to an excuse.
What Mr Graham now seeks is a relaxation of the kind referred to in paragraph 3 of the order. The order itself is seen as the source of the Court's jurisdiction. It ought to be noted that document 3 on the Court file is a document in terms identical to the Judge's order but signed by representatives of the parties, so that a contractual aspect is present here which there may not be in the case of an order whose terms are decided by the Judge alone.
Mr Holyoak, for the respondent, lays some emphasis on this point, suggesting that the Court's powers to grant relief may be unusually confined. He mentioned Span v. Stanwell Pty Ltd [1984] 1 Queensland Reports 29, General Credits Limited v. Ebbsworth [1996] 2 Queensland Reports 162, Falas Pty Ltd v. Vinyl Pty Ltd [1992] 2 Queensland Reports 593, Ure v. Noosa Shire Council [2003] 1 Queensland Reports 586 and compare Alford v. Ebbage [2003] 1 Queensland Reports 343.
While a relevant factor going to the discretion to allow an order to be changed may be that the order was made at the joint request of parties, I would not think that that circumstance alone means the order could not be changed. Here, in any event, as Mr de Plater for the applicant says, the order contemplates that relaxation may be granted. The question is whether that relaxation should be applied for, perhaps even obtained before the cut-off date indicated by the order.
Reference was made to the permissibility of such conditional orders in the context of a statutory notice of demand served on a company. In Natcraft Pty Ltd v. Win Television Pty Ltd [2003] 1 Queensland Reports 196 (especially at 198), the Court of Appeal's decision there concerned the appropriateness of an order of a conditional nature setting aside the statutory demand.
Subsequently, in Asia Pacific Glass Pty Ltd v. Sindea Trading Co Pty Ltd (No 2) (2003) 47 ACSR 737, Barrett J determined that if the condition is not satisfied in a timely way "the beneficial effect of that order in favour of the plaintiff has ceased so that statutory demand may no longer be regarded as set aside."
The present application faces the difficulty of the Chief Judge's decision in Leggett v. Rupertswood General Store and WorkCover Queensland BD490 of 2004 21st of February 2005 which concerned an order in terms indistinguishable from that of the 14th of April 2004 here, except that the special feature of a condition relating to getting an extension of the limitation period did not apply.
Her Honour accepted the approach of Judge McGill in Goerecke v. State of Queensland [2004] QDC 273. Her Honour's reasons are in a form of a State Reporting Bureau transcript which may not correctly have caught what was said. The passage occasioning difficulty is at page 7 of the reasons:
"I am not persuaded by the elegant arguments of counsel for the applicant that clause 3 of the consent order be interpreted so as to permit the plaintiff to seek an extension of time within which to lodge the notice of claim at any time, and I stress 'at any time', whether or not the proceedings have been purported to issued."
I do not think it was being suggested that the applicant had until the commencement of proceedings the ability to apply for an extension of time.
Here, the applicant is far from being in a position to start a proceeding, having regard to the requirements of the Act over and above section 305, as Goerecke demonstrates. The question is whether the relaxation which the Judge and the parties plainly contemplated might be sought and obtained pursuant to paragraph 3 must be at least sought (and possibly also obtained) within the four months allowed for satisfaction of the condition.
In my opinion, the answer to that question should be (indeed, is) consistent with the approach which has been taken in this Court; I should not lightly depart from that approach. That is what Mr de Plater frankly urges me to do.
Rule 905 of the UCPR might be noted. It provides:
"905. Conditional Order.
(1) A non-money order that is subject to a condition may be enforced only if -
(a) the condition has been satisfied; and
(b) a court has given leave to enforce the order.
(2) Unless a court orders otherwise, if a person fails to satisfy a condition the court has included in an order
(a) the person loses the benefit of the order; and
(b) any other person interested under the order may take any steps that -
(i) are warranted by the order; or
(ii) might have been taken if the order had not been made."
That is completely consistent with everything mentioned above.
Reference might also be made to the general provision relating to extensions of time in rule 7 which provides in sub-rule (1) that "The Court may, at any time, extend a time set under these rules or by order." The rule is potentially applicable here. That the Court is given a discretion does not mean that the Court should exercise it. Here the dimensions of the delay are gross. There is a possibility of prejudice to the respondent; information has placed before the Court that the person designated by Mr Graham is a relevant witness left the relevant employer late last year. I am not contemplating that there is any serious prejudice to the defendant in that or that the inconvenience it may signify is concerning.
My approach is also, it seems to me, consistent with that that applies in the arguably analogous context of guillotine-type orders which, in the usual case, have to be varied (if they are to be varied) before they take effect by their terms. That is established in Bailey v Marinoff (1971) 125 CLR 529.
There are, of course, special cases, and one of them is where rules of court offer some unusual indulgence as in FAI General Insurance Company Limited v Southern Cross Exploration NL (1988) 77 ALR 411 where the relevant rule of the Supreme Court of New South Wales provided that the Court might extend time "as well after as before the time expires whether or not an application for the extension is made before the time expires."
My opinion is that, properly construed, Judge McGill's order does not extend that amount of latitude. If the application was considered on the basis of coming under rule 7, in my opinion the Court should not extend that amount of latitude, so I am dismissing the application.
...
HIS HONOUR: The respondent asks for costs, which s 325(4) of the Act makes possible in case of an interlocutory application only if it is "brought because of unreasonable delay by one of the parties". The reason for the bringing of this application is delay or lateness on the part of Mr Graham and/or his representatives in achieving the relatively simple steps appropriate to get the conditions in Judge McGill's order satisfied. It is not a case where delay by one party necessitates the adverse party's making an "interlocutory application" - which expression Mr Holyoak fairly concedes is an apt description of this application.
In my opinion there is serious doubt which I think the Chief Judge may have felt in Leggett, whether a delay which has become embarrassing in the applicant's camp and necessitates the bringing of an application amounts to "unreasonable delay". That expression, in my opinion, bespeaks an unsatisfactory attitude towards complying with the time-related requirements of the Act by one of the parties. I'm not persuaded that the failure to satisfy a condition to which a beneficial court order is made subject is in that category.
In circumstances where I have that serious doubt I will follow the Chief Judge's precedent again and make no order as to costs.