Hansen v Atria Readiskill Pty Ltd
[2006] QDC 136
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- Hansen v Atria Readiskill Pty Ltd[2006] QDC 136
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Hansen v Atria Readiskill Pty Ltd[2006] QDC 136
Hansen v Atria Readiskill Pty Ltd[2006] QDC 136
[2006] QDC 136
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
Toowoomba No D79 of 2003
No BD1118 of 2006
BARBARA NEAL HANSEN | Plaintiff |
and |
|
ATRIA READISKILL PTY LTD | Defendant |
BRISBANE
DATE 28/04/2006
ORDER
CATCHWORDS: | WorkCover Queensland Act 1996 s 262, s 306(3)(a), s 306(3)(b), s 325 - longer period than the standard 60 days after failure to reach settlement at compulsory conference for service of the claim on the employer allowed - defendant aware of commencement of proceeding - the only prejudice suggested (disposal of a drying machine by the employer's customer) had occurred before notice of claim was given |
HIS HONOUR: The plaintiff can count herself fortunate that her present legal advisors have presented her present application, which seeks to get her out of a difficulty, so effectively to the Court. What she needs, setting aside a change of name of the defendant which the defendant concedes is appropriate to reflect changes in relevant corporate emanations, is an extension of time under Section 306 of the now repealed WorkCover Queensland Act 1996 for service of a claim filed in the Toowoomba Registry on the 19th of August 2003. That was within time from the stand point of the three year limitation period in respect of the work injury on which the claim was based, which is ascribed to the 28th of August 2000.
WorkCover had cooperated by issuing a conditional damages certificate under Section 262 of the Act on the 29th of July 2003. This step authorised the commencement of the proceeding notwithstanding that the pre-litigation procedures required by the Act had not been gone through. The plaintiff had left it until the last minute, metaphorically speaking, to consult her former solicitor, Mr Munro, on the 3rd of July 2003. He quickly got out the relevant notice of claim with the consequence of the cooperation under Section 262, which I have just mentioned.
On the 28th of August 2003 Mr Munro advised WorkCover that proceedings had been commenced and offered to provide a sealed copy of the proceedings, the status of which was effectively that they were stayed until the Act's requirements had been attended to. In retrospect it is unfortunate that the sealed copy was not requested or supplied, but the Court notes that the defendant and WorkCover should be treated as aware of the proceedings.
The defendant's role as a labour hire company was to make services of people such as the plaintiff available to businesses which had need of them. That is a relevant aspect in the present application, as will be seen.
Throughout 2004 and 2005 steps under the Act took place. A compulsory conference was held on the 18th of October 2005. It was unsuccessful and accordingly Section 306(3)(a) required service of the claim within 60 days. Although Mr Barrett, responding to that application, says that there is no explanation of the failure to serve in time in terms of illness or anything of that kind, it seems to me it is right for the Court to assume that things had somehow gone wrong - perhaps surprising in light of Mr Munro's effective performance to that time.
Once solicitors for WorkCover on the 13th of January 2006 wrote to Mr Munro observing that service had not been effected, he prudently advised the plaintiff to seek independent legal advice. On the face of things there was a delay in her doing that, since it was not until the 7th of March 2006 that Mr Meibusch was consulted. He is in a position to name if that is required other solicitors the plaintiff had approached in the meantime without useful result. Within a couple of days Mr Meibusch identified the need under Rule 69 to change the description of the defendant and serve a sealed copy of the proceedings on the appropriate entity.
WorkCover was apparently provided with a copy of the proceedings on the next day. The present application seeking relief under Rule 69 and under Section 306 was filed on the 30th of March 2006.
Mr Taylor has assembled a rather formidable collection of authorities which are warrant for the Section 306 application succeeding. They begin with Buchanan v. Sword Holdings Pty Ltd [2004] QSC 009 - in paragraph [17] of the reasons in which Cullinane J notes a relevant decision of Helman J: WorkCover Queensland v. Lucas [2003] QSC 28. Then come Sorrenson v. Teys Brothers (Beenleigh) Pty Ltd [2004] QCA 200, and Watson v. WorkCover Queensland [2005] QSC 225.
The defendant's argument is that the plaintiff does not succeed in her task of satisfying the Court that it is appropriate to exercise the discretion under Section 306(3)(b) of the Act. I have already made comments relevant to his seeking to distinguish this matter from Buchanan on the basis there is no satisfactory explanation for the failure to serve. In the authorities mentioned, prejudice to the defendant, is, as one would expect, an important consideration.
Mr Barrett places before the Court in that regard a letter of yesterday's date from the solicitors for a company called Brims Proprietary Limited which was the defendant's customer to whom the plaintiff's services were being provided at the relevant time. The solicitors understandably complain of the late notice of the application and perhaps - although the letter is not really express about this - notice of the claim; they mention instructions of Brims to the effect that "the drying machine in use at the time of the alleged event was decommissioned and dismantled in 2002 - the said machine's parts have since been sold by a client."
As it happens, any prejudice flowing from those circumstances occurred even before the notice of claim, which makes it difficult to regard such prejudice as determinative today. For what it is worth, the Court accepts information supplied from the Bar table after Mr Meibusch made reference to his files which confirms that a statutory notice in respect of a work injury was given about the time of the accident and referred to the plaintiff suffering harm while throwing wood into the dryer. It seems that no benefit was supplied at that time to the plaintiff, but relevant circumstances were on the record.
I suppose that at bottom there is an issue here as to whether, as would ordinarily be the case, WorkCover's clientele are to be responsible for meeting any just damages claim the plaintiff may have or the clientele of the solicitors of the State. I think that for reasons indicated above the plaintiff ought to have the relief that she seeks in this application.
Is there a draft order?
MR TAYLOR: Your Honour, there is a draft order. One thing I should mention: there was also an application to move the proceedings from Toowoomba to Brisbane.
HIS HONOUR: Right.
MR TAYLOR: It was in my submissions but I‑‑‑‑‑
HIS HONOUR: I'd like this transcribed too. Well, that'll probably suit you.
MR BARRETT: It does, your Honour, and one final issue, I suppose, is the costs.
HIS HONOUR: You might be in a stronger position there.
MR BARRETT: It's a non-certificate injury, your Honour, so it's governed by section 325. There are only limited circumstances in which costs can be awarded, but in my submission this one clearly falls within that in that the necessity for the application arises out of the unreasonable delay on the part of Mr Munro.
MR TAYLOR: Your Honour, I do have a draft order.
HIS HONOUR: It could probably be called indefensible delay, couldn't it?
MR TAYLOR: I was going to say it is very difficult to defend. All that I can say about that is that perhaps those costs could be deferred until the matter is resolved.
HIS HONOUR: Well, it's payment of them.
MR TAYLOR: Yes, payment of them. I can't put it any - any higher than - than that.
MR BARRETT: I don't have instructions to consent to that part of it.
HIS HONOUR: But it's common, Mr Barrett.
MR BARRETT: I don't have the instructions, your Honour, so‑‑‑‑‑
HIS HONOUR: I'm not asking you to agree to that, but‑‑‑‑‑
MR BARRETT: No, I can't agree to it.
HIS HONOUR: You've got provision here that the costs be paid by your client anyway.
MR BARRETT: But that the payment be deferred.
HIS HONOUR: Yes, all right. You've already anticipated what might happen about costs.
MR BARRETT: I have.
HIS HONOUR: I'd like this exchange transcribed as well as the reasons I gave. What's the date for paragraph 2, Mr Taylor?
MR BARRETT: Your Honour, we're just - your Honour, the 12th of May 2006.
HIS HONOUR: 12th May 2006?
MR TAYLOR: I understand that suits Mr Meibusch and Mr Barrett.
MR BARRETT: Yes, your Honour.
HIS HONOUR: It's the sort of application I don't get every day. It wasn't without interest. I'm grateful to both of you for the way in which you presented it. Thank you. Order as per draft.