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Australia Meat Holdings Pty Ltd v Hamling[2006] QDC 74

Australia Meat Holdings Pty Ltd v Hamling[2006] QDC 74

DISTRICT COURT OF QUEENSLAND

CITATION:

Australia Meat Holdings Pty Ltd v Hamling [2006] QDC 074

PARTIES:

AUSTRALIA MEAT HOLDINGS PTY LTD (ABN 14 011 062 338)

(Defendant/Applicant)

v

MARK HAMLING

(Plaintiff/ Respondent)

FILE NO/S:

BD4564 of 2003

DIVISION:

Civil

PROCEEDING:

Originating Application

ORIGINATING COURT:

District Court at Brisbane and Beenleigh

DELIVERED ON:

7 April 2006

DELIVERED AT:

Brisbane

HEARING DATE:

4 March 2005 and 3 February 2006.

JUDGE:

Tutt DCJ

ORDER:

  1. The application filed 4 January 2005 is dismissed.
  2. The applicant pay the respondent’s costs of and incidental to this application including reserved costs to be agreed or assessed on the standard basis in accordance with the District Court scale.

CATCHWORDS:

Application to strike out claim – proceedings invalidly commenced – whether “complying notice of claim” given – whether pre-court procedures followed – estoppel and waiver issues – whether statutory provision can be waived by a party for whose benefit the provision is enacted.

District Court of Queensland Act 1967 s 68(1)(a).

Health and Other Services (Compensation) Act 1995 (Cth) s 24.

Uniform Civil Procedure Rules 1999 rr 16(e) and 26(8).

Workers’ Compensation Act 1990 s 182D.

WorkCover Queensland Act 1996 ss 279, 280, 293, 302, 303, 305 and 308.

WorkCover Queensland Regulations 1997 (Qld) Reg 74.

Beesley v Hallwood Estates Ltd (1960) 2 All ER 314.

Commonwealth v Verwayen (1990) 170 CLR 394.

Day Ford Pty Ltd v Sciacca (1990) 2 Qd R 209.

Goerecke v State of Queensland [2004] QDC 273.

Graham v Ingleby 154 ER 277.

Hamling v Australia Meat Holdings Pty Ltd [2005] QCA 415.

Hamling v Australia Meat Holdings Pty Ltd (Supreme Court No BS11360 of 2004) delivered 27 April 2005.

Maritime Electric Co v General Dairies Limited (1937) AC 610.

Salamon Nominees Pty Ltd v Moneywood Pty Ltd BC 9807212 Supreme Court of Queensland, Court of Appeal No. 4852 of 1998, unreported decision given on 22 December 1998.

Toronto Corporation v Russell (1980) AC 493.

COUNSEL:

Dr G J Cross for the applicant.

Mr R A I Myers for the respondent.

SOLICITORS:

Abbott Tout Lawyers for the applicant.

Trilby Misso Lawyers for the respondent.

Introduction

  1. [1]
    On 24 February 2006 this court made an interim order in this proceeding granting the plaintiff, Mark Hamling (“the respondent”), leave to make further submissions on the substantive application currently undecided before the court and invited both parties to make any further submissions if they wished on the application before the court although comprehensive submissions had already been made by that time by both parties, not only on the respondent’s request for leave to reopen submissions to the original application but also on the substantive issues in the application.
  1. [2]
    For completeness I will repeat the history of this application which is summarised in the interim order of 24 February 2006.
  1. [3]
    On 4 March 2005 this court heard an application by the defendant in proceeding number BD4564 of 2003, namely Australia Meat Holdings Pty Ltd (“the applicant”) for certain declarations under the WorkCover Queensland Act 1996 (Qld) (“the Act”) and the Uniform Civil Procedure Rules 1999 (“UCPR”) and for a primary order that “pursuant to UCPR 16(e) the plaintiff’s claim and statement of claim be struck out”.
  1. [4]
    The plaintiff in the proceeding, Mark Hamling (“the respondent”), opposed the application and initially sought an order that the application be dismissed but ultimately submitted that the most appropriate course to adopt with the application was to adjourn it pending the outcome of issues to be addressed in the then current Supreme Court proceedings between the parties[1], which it was further submitted, were “…inextricably mixed up with these District Court proceedings”.[2]
  1. [5]
    During the course of the respondent’s counsel’s oral submissions at the hearing and in his written submissions, issues of estoppel and waiver were raised by him as potential arguments against the applicant’s conduct in the proceeding which could impact upon the relief sought by the applicant, but at that time such issues were not argued before the court because of the further proposed interlocutory proceedings in the Supreme Court action to which reference has been made.
  1. [6]
    Interlocutory proceedings were subsequently filed in the Supreme Court action by the applicant and heard by Chesterman J on 27 April 2005.
  1. [7]
    Chesterman J struck out the Supreme Court proceedings[3] and a subsequent appeal from that decision to the Court of Appeal was dismissed on 11 November 2005.[4]
  1. [8]
    The core issue in the application before Chesterman J and the subsequent appeal was whether the granting of leave by a judge of the District Court pursuant to s 305 of the Act to bring a proceeding despite non-compliance with the requirements of s 280 of the Act entitled the respondent to bring a proceeding in the Supreme Court. The respondent also argued a secondary point that the notice of claim he gave to WorkCover pursuant to s 280(1) of the Act was “a complying notice of claim” thereby entitling him to commence his proceeding pursuant to s 308(1)(a)(i) of the Act as of right.
  1. [9]
    On both bases Chesterman J decided against the respondent and his decision was upheld by the Court of Appeal. For present purposes it should be noted that the Supreme Court proceedings were completely separate proceedings from the proceedings before this court (although arising out of the same cause of action) and obviously did not involve any consideration of the proceedings before this court.
  1. [10]
    On 5 December 2005 respondent’s counsel sought leave to make further submissions in this application “…before his Honour delivers his decision in the matter”.[5]
  1. [11]
    The applicant through its counsel opposed the respondent’s request and the court reconvened on 3 February 2006 to hear the parties as to why the respondent should be allowed to make further submissions as sought.
  1. [12]
    After hearing the parties further the matter was adjourned to allow both parties to provide written submissions on the question of whether the court should allow the respondent to make further submissions on the substantive application. Those submissions were subsequently made and comprehensively addressed the respective arguments on the substantive issues on the application including those of estoppel and waiver which were not argued before the court on 4 March 2005.
  1. [13]
    For the reason previously stated in paragraph [1] hereof the court is now fully apprised of the arguments of both parties on all relevant issues to this application.

Chronology of Events

  1. [14]
    The chronology of events in this proceeding is succinctly summarised by his Honour Jerrard JA at paragraph [2] of the Court of Appeal decision of 11 November 2005 but again for completeness is worth repeating hereunder:
  • “the appellant was injured on 2 January 2001;
  • he gave a notice of claim to the respondent employer (a self-insurer) under s 280 of the Act, dated 22 October 2003 and received on 3 November 2003;
  • by application dated 19 December 2003 filed in the District Court, he applied in that court for leave pursuant to s 305 of the Act to start proceedings against the respondent for damages for personal injuries sustained on 2 January 2001;
  • by order made 19 December 2003 by Noud DCJ, he was granted leave to commence proceedings in respect of those injuries, subject to his complying with the provisions of Chapter 5, Parts 5 and 6 of the Act;
  • proceedings in the District Court were filed on 23 December 2003;
  • the limitation period expired on 2 January 2004;
  • the respondent’s solicitors advised that the notice of claim given on 19 December 2003 was deemed compliant on 4 February 2004,3 after the limitation period had expired;
  • on 3 August 2004 the respondent delivered a written notice under s 285 of the Act;
  • on 27 October 2004 the compulsory conference required by s 293 of the Act was held;
  • on 23 November 2004 the District Court proceedings filed on 23 December 2003 were served on the respondent;
  • on 21 December 2004 the respondent entered a conditional notice to defend in the District Court, pursuant to Uniform Civil Procedure Rule 144;
  • on 24 December 2004 the appellant began the proceedings in the Supreme Court;
  • on 10 February 2005 the respondent applied in the District Court for a declaration that the proceedings commenced in the District Court on 23 December 2003 were commenced in contravention of the Act;
  • on 24 March 2005 the respondent filed an application in this Court for a declaration that “the Claim and Statement of Claim of 24 December 2003 [sic] were commenced in contravention of [the Act]”.
  1. [15]
    While the above is a comprehensive chronology of the significant events in this proceeding it is necessary to analyse carefully the precise details and sequence of correspondence which passed between the parties relevant to those events.

“When did the Respondent’s Notice of Claim become a complying Notice of Claim?”

  1. [16]
    The issues in this proceeding have now been before the District Court, Supreme Court and Court of Appeal on at least four occasions excluding a further appearance[6] and comprehensive submissions made in the current application, where the relevant issues in this proceeding have been addressed in one way or another and in respect of which there have been many comments made, if not findings, on crucial issues involved. 
  1. [17]
    It is significant however that Keane JA in paragraph [50] of his reasons[7] when dealing with the respondent’s claim for “pharmaceutical and travel expenses” declined “…finally to resolve this argument” that the respondent’s notice of claim was non-compliant in this respect but relied upon the fact that the respondent’s failure to particularise his Health Insurance Commission (HIC) claim caused the notice of claim to be non-compliant before the expiration of the limitation period (as was asserted by the applicant in this application), and it was upon this basis only that Keane JA reached this conclusion with which Jerrard JA and Douglas J agreed.
  1. [18]
    Contrary to Jerrard JA’s comments at paragraph [4] of his reasons[8] it should be said at the outset that the HIC charge in this type of claim constitutes only a very small if not miniscule proportion of a plaintiff’s claim for damages particularly where the claim is one by an injured worker against his employer in which most of the medical expenses incurred by the injured worker for attendances on doctors are paid for by the Workers’ Compensation Insurer and only those medical attendances usually incurred after workers’ compensation payments have ceased would be contained in the HIC claim.  The HIC claim does not refer to hospital expenses but medical expenses only incurred by a claimant as a result of attendances on general medical practitioners for routine examinations, renewal of pharmaceutical prescriptions and the like.  In practice the HIC charge is of negligible importance in the assessment of a plaintiff’s claim for damages and if not claimed by a plaintiff does not in any way affect the determination of the claim as the relevant amount must be refunded to the HIC by the insurer whether or not it is claimed by a plaintiff.  The only person who may be prejudiced by its non-disclosure is a plaintiff not an insurer, which, if a claim is settled, always requires a clearance certificate to be obtained from the HIC before release of any funds to a plaintiff.
  1. [19]
    The respondent’s notice of claim for damages pursuant to s 280 of the Act was forwarded to the applicant under cover of a letter dated 28 October 2003[9] and received by the applicant on 3 November 2003 as acknowledged by its letter dated 10 November 2003[10] to the respondent’s solicitors (“the solicitors”).
  1. [20]
    The applicant advised the solicitors that the notice of claim was not a “complying notice of claim” to use the accepted terminology and advised the solicitors that the notice was not a complying one in a number of respects as set out in the letter of 10 November 2003 (“the letter”).
  1. [21]
    The letter referred to the questions in the notice of claim which the applicant alleged did not comply with the regulation[11] to the Act and a perusal of the alleged areas of “non-compliance” tends to highlight the oppressive zeal with which the applicant has challenged the respondent’s notice of claim.  For example, the applicant even challenged the respondent’s correct name by requiring him to confirm that his name was “Mark Anthony Hamling” the name on his application for workers’ compensation, whereas he had completed his notice of claim in the name of “Mark Hamling” only.  Similarly the applicant required “full particulars of the event including the name and address of any person on behalf of your client’s employer to whom your client reported the event and their employment details” when the respondent had already provided “full particulars of the event” and had informed the applicant that “…a claimant’s co-worker reported the incident to an employer’s representative but (he) is not aware of the exact details” for the reason, as the respondent subsequently swore by statutory declaration that he “…was unconscious as a result of the incident…”.[12]
  1. [22]
    Most, if not all, of the applicant’s queries of the respondent whereby it alleged that the respondent’s notice of claim was non-complying are in similar vein even to the extent of challenging the respondent’s answer of “nil” to the question of whether he admitted any liability for the incident and required him to assert that he admitted “0% liability”. The applicant’s query in respect of the respondent’s answer to question 41 of the notice of claim was also erroneous as the applicant had previously assessed the respondent’s “scarring” resulting from the respondent’s abdominal injury and forwarded to him a cheque for $675.00 representing “…your lump sum compensation for prescribed disfigurement”.[13]
  1. [23]
    In any event the solicitors responded to the applicant by their letter of 5 December 2003 (which was within the limitation period) enclosing various documents including a statutory declaration by the respondent answering all of the queries raised by the applicant in the letter and in particular giving an undertaking “…to provide the HIC notice of charge to your office within 7 days of receipt thereof”.[14]
  1. [24]
    Notwithstanding the respondent’s comprehensive reply to the applicant’s queries, which it seems to me would enable the applicant to carry out the “Object of Part 5” of the Act[15], the applicant yet again advised the respondent’s solicitors that it was “….not satisfied that the notice of claim form complies with s 280 of the WorkCover Queensland Act 1996”[16] and then proceeded to refer again to the respondent’s answers to questions 41 and 58 respectively as well as stating that the solicitors undertaking in respect of the HIC notice of the charge had not been received, which was plainly incorrect.
  1. [25]
    As the expiry date of the limitation period within which to commence proceedings was 2 January 2004 the respondent wisely made his application to this court and the consent order by Noud DCJ was made on 19 December 2003. Significantly it should be noted that in the order made the applicant agreed “…to adjourn the determination of the issues…” in respect of the respondent’s “scarring” injury which was the subject of the applicant’s query in respect of question 41 of the notice of claim and further agreed that the applicant amend his court proceedings if necessary when that issue was resolved.
  1. [26]
    On the question of whether the respondent’s notice of claim was a “complying notice of claim” as required under the Act to be delivered before the end of the period of limitation within which to commence proceedings, the only two possible grounds upon which the applicant could allege that it was not a complying notice were in respect of the respondent’s answer to question 58 of the notice of claim ie., in respect of “pharmaceutical expenses (and) travelling expenses” where the respondent had provided an “estimate” and the respondent’s alleged failure to provide “an undertaking” in respect of the HIC notice of charge.
  1. [27]
    As stated in paragraph [23] above the solicitors provided the relevant undertaking in their letter of 5 December 2003 which satisfied this requirement thereby leaving the only possible complaint in respect of the notice of claim, the alleged lack of particularity of the “pharmaceutical and travel expenses”, estimates only of which had been provided.
  1. [28]
    For those who practise in this area of litigation it is common practice that estimates only of “pharmaceutical and travel expenses” be provided in a claimant’s notice of claim as these amounts are of minor significance in the overall assessment of a claimant’s claim for damages and for practical purposes like the HIC charge have an almost negligible impact on the assessment of damages. The provision of estimates only would not in any practical sense inhibit an insurer’s capacity to assess a claim, if an insurer was genuine in its desire to consider a resolution of the claim.[17]  In addition it seems grossly inconsistent if not perverse, for an insurer to regard as acceptable “broad-brush” estimates for general and future economic loss categories of damages but require finite particulars of heads of damage which are the minutiae of the claim.
  1. [29]
    As stated the same principle applies to the HIC charge which for the reasons mentioned in paragraph [18] hereof has no practical impact on the resolution of the claim for the reason that if a claimant does not include the relevant amount in his claim the insurer is obliged to refund the amount as a first charge on the damages payable as required under the Health and Other Services (Compensation) Act 1995 (Cth) (see s 24).
  1. [30]
    For the reasons mentioned above I find that the notice of claim delivered by the respondent to the applicant became a complying notice of claim not later than 8 December 2003 (ie. before the end of the limitation period) when the applicant received the solicitor’s letter of 5 December 2003 answering all queries raised in the applicant’s correspondence of 10 November 2003.
  1. [31]
    It is correct that the solicitors provided further information to the applicant under cover of their letter of 3 February 2004 (post the end of the limitation period) but I would regard this information as supplementary to the information previously provided by the respondent which I find to have been provided in compliance with the Act and regulations thereunder.
  1. [32]
    On the basis of the respondent’s notice being a complying one before the end of the limitation period as I have so found, the respondent would not have been obliged to seek the court’s leave to commence proceedings under s 305(1) of the Act as the pre-court procedures under Part 5 could then be followed and if the claim was not resolved at the compulsory conference stage, proceedings could have been commenced in accordance with Part 7 of the Act.
  1. [33]
    However as the question of whether or not the respondent’s notice of claim was a complying one had not been resolved and the end of the limitation period was imminent, the respondent quite appropriately and prudently sought the court’s leave to commence proceedings pursuant to s 305 of the Act and as previously stated leave was granted by Noud DCJ on 19 December 2003.
  1. [34]
    Obviously none of the pre-court procedures under Part 5 of the Act apart from giving notice of claim had time to operate but they were then in train.
  1. [35]
    Again in accordance with the usual practice which then applied in this area of litigation the respondent’s claim was filed on 23 December 2003 (but not proceeded with) shortly after the order giving leave to commence proceedings was made and before the expiration of the limitation period on 2 January 2004 although if the decision of Goerecke v State of Queensland [2004] QDC 273 (“Goerecke”) is correct the proceedings were filed prematurely.
  1. [36]
    By letter of 5 February 2004 the applicant accepted that the respondent’s notice of claim was a complying one and the various requirements of Part 5 of the Act dealing with the pre-court procedures were commenced.
  1. [37]
    As the claim was not resolved at the compulsory conference between the parties held on 27 October 2004 as required by s 293 of the Act the District Court proceedings filed on 23 December 2003 were then served on the applicant on 23 November 2004 again in accordance with the usual practice which applied in claims of this nature.
  1. [38]
    Pleadings were then exchanged between the parties with the applicant filing a “Conditional Notice of Intention to Defend” in the first instance on 21 December 2004[18] challenging the respondent’s claim on the most technical ground that the claim should have been commenced in the Ipswich District Court jurisdiction, where the applicant conducted its business, even though the applicant had agreed to the consent order giving leave to commence proceedings out of the Brisbane District Court and in fact by arrangement with the respondent’s solicitors did not appear when the consent order was made.  When this situation was brought to the attention of the applicant’s solicitors an Unconditional Notice of Intention to Defend and a Defence was filed on behalf of the applicant on 3 February 2005.[19]
  1. [39]
    Up to this point there had been no complaint by the applicant that the respondent’s proceedings in this court had been commenced contrary to the provisions of s 303 of the Act nor did the applicant aver to this fact in the defence filed. The only other matter referred to in the applicant’s solicitors’ letter to the respondent’s solicitors enclosing a copy of the applicant’s defence in the proceedings was a request that the respondent’s solicitors return their client’s “…Notice of Discontinuance for the Supreme Court action”.[20]
  1. [40]
    It was not until 22 February 2005 that the applicant’s solicitors first raised the issue of the District Court proceedings being improperly commenced on the basis of the decision in Goerecke which had been delivered seven months previously on 11 June 2004.[21]

The Applicant’s Submissions

  1. [41]
    The applicant’s submissions are essentially as follows:
  1. (a)
    The District Court had no jurisdiction to hear this proceeding in the first place as the respondent’s claim as contained in his notice of claim for damages exceeded the monetary jurisdiction of the District Court and therefore leave to commence proceedings should not have been granted by Noud DCJ on 19 December 2003;
  1. (b)
    The respondent has commenced his proceedings contrary to s 303 of the Act in that he did not fall within any of the categories set out in subsections (a) to (d) thereof entitling him to do so[22];
  1. (c)
    Arguments of waiver and estoppel are not open to the respondent in respect of the District Court proceedings as those issues “…must be considered at a point no later than 24 December 2004 being the date of the expiration of the sixty days from the date of the compulsory conference” [23]; and
  1. (d)
    As a consequence this court should strike out the plaintiff’s claim and statement of claim with costs.

The Respondent’s Submissions

  1. [42]
    The respondent essentially submits that:
  1. (a)
    The respondent’s notice of claim became compliant no later than 10 December 2003;
  1. (b)
    The provisions of s 303 of the Act do not prohibit the respondent from commencing his proceedings until “…at least six months …have elapsed after…” the respondent had given a complying notice of claim as s 303 “is permissive” and that “…upon a proper construction of s 303 of the Act it should be recognised as having been intended to permit proceedings to be commenced within the six month period following leave consistent with the provision such as s 182D of the repealed Workers’ Compensation Act 1990”[24];
  1. (c)
    That in any event questions of estoppel and waiver apply because of the applicant’s actions after service of the claim and statement of claim upon the applicant on 23 November 2004; and
  1. (d)
    That the application should be dismissed with costs.

Estoppel/Waiver:

1. Estoppel

  1. [43]
    It is well established law that estoppel is constituted by an unequivocal representation by words or conduct by one party to another upon which the latter party acts to his/her or its detriment. If made out the court will adjust the rights of the parties as is just and equitable either by precluding the first party from departing from the representation or by awarding compensation sufficient to meet the detriment.[25]
  1. [44]
    It is also well established law that estoppel “cannot be invoked to negative the operation of a statute”[26].  The Judicial Committee in the matter of Maritime Electric Co v General Dairies Limited (1937) AC 610 at 620 said that “the court should first of all determine the nature of the obligation imposed by the statute and then consider whether the admission of the estoppel would nullify the statutory provision”.  This passage was expressly approved by the Queensland Court of Appeal in Day Ford Pty Ltd v Sciacca (1990) 2 Qd R 209, and by Chesterman J with whom de Jersey CJ agreed in Salamon Nominees (supra).

2. Waiver

  1. [45]
    The principle of waiver was also discussed in Verwayen (supra) particularly at page 424 by Brennan J (as he then was), quoting a passage from Graham v Ingleby 154 ER 277 at 279:

“…it is evident that a party who has a benefit given him by statute, may waive it if he thinks fit.  There are many cases in which no action can be commenced except after certain notice of action.  That is a requirement by statute; but if a plaintiff went to trial, and the defendant did not then object to the want of notice, could he afterwards set aside the whole proceedings because no notice was given?  It is clear that he could not…

And at 426:

…And, even when a time limit is imposed by the statute that creates a new cause of action or right, it may be so expressed that it is regarded as having a purely procedural character, as a condition of the remedy rather than an element in the right; and in such cases it can, it seems, be waived…”

  1. [46]
    The comments also of Gaudron J at 486 are apposite:

“The general principle is that "an individual cannot waive a matter in which the public have an interest":  Graham v. Ingleby, per Alderson B. at p 657 (p 279 of ER) referring to Reg. v. Bloxham (1844) 6 QB 528 (115 ER 197). See also Ross v. Australian Postal Commission (1982) 69 FLR 376, at p 382; Phillips v. Martin, at p 158.  Conversely, a person may waive a right that is for his or her own benefit: Great Eastern Railway Co. v. Goldsmid (1884) 9 App Cas 927, at pp 936-937; Toronto Corporation v. Russell (1908) AC 493, at p 500.  Where a right is conferred by statute a question may arise whether the statute confers a personal or a public right.  See, for example, Ross, at pp 382-383; Park Gate Iron Co., at pp 638-639.”

  1. [47]
    And further at page 495 where McHugh J, citing the case of Toronto Corporation v Russell (1980) AC 493 at 501 where the Judicial Committee said:

“There is no evidence to show that the plaintiff, up to a short time before bringing this action, ever complained that he had not received the notice which his counsel now insist was a condition precedent to a valid sale, or that the sale was invalid for any reason.  On the contrary, he treated the sale as valid, but mistook the effect of it on his right to redeem.  Their Lordships think that, in the absence of all explanation by the plaintiff other than that given in his evidence on discovery, the legitimate inference to be drawn is that he consented to dispense with this notice - that is, he waived it."

  1. [48]
    And further at page 496:

“The principle that statutory conditions enacted solely for the benefit of individuals and not for the public can be waived has also been recognised in this Court on a number of occasions:  see Sandringham Corporation v. Rayment (1928) 40 CLR 500, at pp 527, 537; Davies v. Davies (1919) 26 CLR 348, at p 365; Brown v. The Queen (1986)160 CLR 171, at pp 178, 208.”

  1. [49]
    The Act introduced in 1996 implemented wide-ranging reforms in respect of workers’ compensation in Queensland as recommended by the Kennedy Inquiry into workers’ compensation in 1995[27] and the pre-eminent object in respect of common law damages claims was to implement claim procedures for the settlement of claims by negotiation before it was necessary to commence court proceedings in respect of those claims as a result of which many categories of costs are necessarily incurred in the prosecution of such claims.  This philosophy was reflected by the introduction of Chapter 5 of the Act and restated in particular in s 279.
  1. [50]
    I have no doubt that Chapter 5 of the Act and particularly Parts 5, 6 and 7 thereof were introduced wholly for the benefit of the WorkCover insurer to enable every attempt to be made by the parties to negotiate a settlement of a claim before costs were incurred in the court process which almost universally would be paid by the insurer and where the insurer would thus suffer a significant detriment which might otherwise be avoided.
  1. [51]
    In the instant case the fact that the respondent filed his proceeding and no more, within the six month period referred to in s 303 of the Act, did not in any way prejudice or inhibit the applicant in its subsequent negotiations with the respondent in accordance with the usual pre-court procedures set out in Parts 5 and 6 of Chapter 5 of the Act all of which were satisfactorily concluded by 27 October 2004 when the compulsory conference took place without resolution of the claim, at which time the court process then proceeded by the service of the claim on 23 November 2004.
  1. [52]
    Thereafter on the material available the parties conducted the litigation in this court on the basis that the proceedings had been validly commenced after the preliminary jurisdictional issue had been resolved on or about 27 January 2005 following which the applicant filed an Unconditional Notice of Intention to Defend and a Defence.

Findings

  1. [53]
    On a consideration of all of the material in this proceeding I make the following findings:
  1. (a)
    The respondent was entitled to file his originating application on 16 December 2003 in this court seeking leave to commence proceedings under s 305 of the Act notwithstanding the quantum of his claim assessment as set out in his notice of claim for damages as by pursuing his claim in this court he was at all times limited to the maximum monetary jurisdiction of this court pursuant to s 68(1)(a) of District Court of Queensland Act 1967, and the fact that he may have claimed an amount beyond the monetary jurisdiction of this court in his notice of claim does not in my view inhibit or prohibit him from so doing but rather limits him to the monetary jurisdiction only of this court once he elects to submit himself to the jurisdiction of this court irrespective of what amount he may have claimed in any out of court negotiations.  I do not consider that this approach conflicts with UCPR 26(8) as in the absence of consent by the parties to a proceeding in the District Court enlarging the monetary limit of any claim, s 68(1)(a) applies.
  1. (b)
    The notice of claim dated 22 October 2003 and delivered to the applicant on or about 3 November 2003 became a complying notice of claim not later than 8 December 2003.
  1. (c)
    As leave had been granted by this court to commence proceedings under s 305 of the Act[28], s 303 of the Act required the respondent to commence his proceeding not earlier than 8 June 2004[29] but because of the applicant’s conduct following the service of the proceedings on 23 November 2004 particularly, it waived the respondent’s obligation to comply with s 303 of the Act which I find was enacted wholly for the benefit of the applicant, thereby enabling the proceeding to be deemed to have been validly commenced.
 

Orders

  1. [54]
    My orders will therefore be:
  1. The application filed 4 January 2005 is dismissed.
  2. The applicant pay the respondent’s costs of and incidental to this application including reserved costs to be agreed or assessed on the standard basis in accordance with the District Court scale.

Footnotes

[1]  See transcript page 20 lines 15-20; page 22 lines 55-60; and page 23 lines 1-30.

[2]  See page 23 line 2.

[3]  See unreported ex-tempore judgment of Hamling v Australia Meat Holdings Pty Ltd (Supreme Court No BS11360 of 2004) delivered 27 April 2005.

[4]  See Hamling v Australia Meat Holdings Pty Ltd [2005] QCA 415.

[5]  See letter to the court dated 5 December 2005 from Mr Myers of Counsel.

[6]  3 February 2006.

[7]Hamling v Australia Meat Holdings Pty Ltd [2005] QCA 415.

[8]  Ibid.

[9]  Exhibit “MSB1” to the affidavit of M S Broughton sworn 18 January 2006.  Leave is formally given for this affidavit to be read and filed on the court file.

[10]  Exhibit “MSB3” to the affidavit of M S Broughton sworn 18 January 2006.

[11]  Regulation 74 of the WorkCover Queensland Regulations 1997 (Qld).

[12]  These “particulars” would have been immediately available to the applicant by the most routine of inquiries.

[13]  See Exhibit “MCB-5” to the affidavit of Michael Cahill Blacklock being Exhibit “MMF2” to the affidavit of Monica Mary Flynn filed 3 March 2005 and being letter of 4 April 2003 from the applicant to the respondent.

[14]  Exhibit “MSB4” to the affidavit of M S Broughton sworn 18 January 2006.

[15]  Section 279.

[16]  Exhibit “MSB6” to the affidavit of M S Broughton sworn 18 January 2006 being letter of 10 December 2003 from the applicant to the respondent.

[17]  It may be noted on this point that Chesterman J at page 5 of his judgment of 27 April 2005 commented when dealing with the application then before him that “…the estimates given may just pass that test…”.

[18]  Exhibit “MCB-11” to affidavit of M C Blacklock sworn 16 December 2003 being exhibit “MMF2” to the affidavit of M Flynn sworn 3 March 2005 and being letter dated 23 December 2004 from the applicant to the respondent.

[19]  Ibid, and enclosed with the letter of 3 February 2005 from the applicant to the respondent.

[20]  Ibid.  See also Supreme Court proceedings SC No 11360 of 2004 referred to above in paragraph [9].

[21]  Ibid, and being the letter of 22 February 2005 from the applicant to the respondent.

[22]  Section 303 of the Act.

[23] Paragraph 9.3 of applicant’s submissions of 9 February 2006.

[24] Section 182D(5) of that Act provided: “If a conditional certificate is given, the worker may start proceedings at law for damages for the injury, but the proceedings are stayed until the board makes the certificate unconditional”.

[25] See Commonwealth v Verwayen (1990) 170 CLR 394.

[26]  See Beesley v Hallwood Estates Ltd (1960) 2 All ER 314 at 324; see also “Estoppel by Misrepresentation , Spencer Bower and Turner (3rd Edition) by Turner at paragraph 141; Salamon Nominees Pty Ltd v Moneywood Pty Ltd BC 9807212 Supreme Court of Queensland, Court of Appeal No. 4852 of 1998, unreported decision given on 22 December 1998, Chesterman J at page 10 paragraph 45-46

[27]  See Report of the Commission of Inquiry into Workers’ Compensation and related Matters in Queensland (Kennedy Inquiry) June 1996.

[28]  It should be noted that if the notice of claim was “a complying notice” before the end of the limitation period, which I have so found, leave to commence proceedings under s 305 was unnecessary and the respondent was entitled to rely on s 308(1) of the Act to commence his proceedings subject of course to s 308(2).

[29]  Six months after the complying notice of claim has been given.

Close

Editorial Notes

  • Published Case Name:

    Australia Meat Holdings Pty Ltd v Hamling

  • Shortened Case Name:

    Australia Meat Holdings Pty Ltd v Hamling

  • MNC:

    [2006] QDC 74

  • Court:

    QDC

  • Judge(s):

    Tutt DCJ

  • Date:

    07 Apr 2006

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Beesly v Hallwood Estates Ltd (1960) 2 All ER 314
2 citations
Jump To
Cite 1 - (1960) 2 All ER 314
Cite 2 - (1960) 2 All ER 314
Brown v The Queen (1986) 160 CLR 171
1 citation
Jump To
Cite 1 - (1986) 160 CLR 171
Commonwealth v Verwayen (1990) 170 CLR 394
7 citations
Jump To
Cite 1 - (1990) 170 CLR 394
Cite 2 - (1990) 170 CLR 394
Cite 3 - (1990) 170 CLR 394
Cite 4 - (1990) 170 CLR 394
Cite 5 - (1990) 170 CLR 394
Cite 6 - (1990) 170 CLR 394
Cite 7 - (1990) 170 CLR 394
Davies v Davies (1919) 26 CLR 348
1 citation
Jump To
Cite 1 - (1919) 26 CLR 348
Day Ford Pty Ltd v Sciacca[1990] 2 Qd R 209; [1990] QSCFC 1
2 citations
Jump To
Cite 1 - [1990] 2 Qd R 209
Cite 2 - [1990] 2 Qd R 209
Goerecke v State of Queensland [2004] QDC 273
2 citations
Jump To
Cite 1 - [2004] QDC 273
Cite 2 - [2004] QDC 273
Graham v Ingleby [1848] 154 ER 277
2 citations
Jump To
Cite 1 - [1848] 154 ER 277
Cite 2 - [1848] 154 ER 277
Great Eastern Railway Co. v Goldsmid (1884) 9 App Cas 927
1 citation
Jump To
Cite 1 - (1884) 9 App Cas 927
Hamling v Australia Meat Holdings Pty Ltd[2006] 2 Qd R 235; [2005] QCA 415
3 citations
Jump To
Cite 1 - [2005] QCA 415
Cite 2 - [2005] QCA 415
Cite 3 - [2005] QCA 415
Maritime Electric Co v General Dairies Ltd (1937) AC 610
2 citations
Jump To
Cite 1 - (1937) AC 610
Cite 2 - (1937) AC 610
Reg. v Bloxham (1844) 6 QB 528
1 citation
Jump To
Cite 1 - (1844) 6 QB 528
Reg. v Bloxham [1844] 115 ER 197
1 citation
Jump To
Cite 1 - [1844] 115 ER 197
Ross v Australian Postal Commission (1982) 69 FLR 376
2 citations
Jump To
Cite 1 - (1982) 69 FLR 376
Cite 2 - (1982) 69 FLR 376
Sandringham Corporation v Rayment (1928) 40 CLR 500
1 citation
Jump To
Cite 1 - (1928) 40 CLR 500
Toronto Corporation v Russell (1980) AC 493
2 citations
Jump To
Cite 1 - (1980) AC 493
Cite 2 - (1980) AC 493
Toronto Corporation v Russell (1908) AC 493
1 citation
Jump To
Cite 1 - (1908) AC 493

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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