Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QDC
  3. 2010
  4. Greengrass v Margach Builders Pty Ltd - [2010] QDC 396

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Greengrass v Margach Builders Pty Ltd[2010] QDC 396

Greengrass v Margach Builders Pty Ltd[2010] QDC 396

DISTRICT COURT OF QUEENSLAND

CITATION:

Greengrass v Margach Builders Pty Ltd [2010] QDC 396

PARTIES:

MICHAEL GREENGRASS

(Applicant)

AND

MARGACH BUILDERS PTY LTD

(Respondent)

FILE NO/S:

D1115/10

DIVISION:

Civil Jurisdiction

PROCEEDING:

Applications

ORIGINATING COURT:

District Court, Queensland

DELIVERED ON:

19 October 2010

DELIVERED AT:

Brisbane

HEARING DATE:

7 May 2010

JUDGE:

Reid DCJ

ORDER:

  1. The applicant’s application in these proceedings is dismissed.
  2. No order as to costs.

CATCHWORDS:

WORKERS COMPENSATION – ACTIONS FOR DAMAGES AGAINST EMPLOYER – whether applicant completed a compliant notice of claim – where notice of claim was drafted on basis WorkCover Queensland Act 1996 applied – where respondent advised that notice of claim was non-compliant but failed to identify the ways the notice of claim did not comply – where response required written confirmation agreeing to comply with conditions and timeframes under s 276(6) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) – where applicant did not provide such written confirmation – where limitation period expired without a compliant notice of claim having been delivered – whether notice of claim taken to have been compliant – whether WorkCover waived compliance – whether WorkCover complied with s 278 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) and what were the legal consequences thereof – construction of s 302 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld)

Workers’ Compensation and Rehabilitation Act 2003 (Qld) – ss 250, 275, 276, 278, 295, 297, 298, 302

WorkCover Queensland Act 1996 (Qld) – ss 282, 305, 308,

Handover v Consolidated Meat Group Pty Ltd (2009) QSC 41 – applied

Roberts v Australian and New Zealand Banking Group Ltd [2006] 1 Qd R 482 – cited

Wilkinson v Stevensam Pty Ltd [2006] QCA 88 – cited

Lau v WorkCover Queensland [2002] QCA 244 – considered

McKelvie v Page (1999) 2 Qd R 259 – contrasted

Young v Keong (CA 2202 of 1997, 22 May 1998 unreported) – cited

Horinack v Suncorp Metway Insurance Ltd [2000] QCA 441 – considered

Lau v WorkCover Queensland (2000) QSC 271 – considered

COUNSEL:

M. Grant-Taylor SC with him A. Williams for Applicant

R. J. Douglas SC for Respondent

SOLICITORS:

KM Splatt & Associates for Applicant

Spark Helmore for Respondent

  1. [1]
    The applicant claims to have been injured during the course of his employment with the respondent on 17 November 2006.  His claim for damages arising from that incident is governed by the provisions of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“WCRA”). 
  1. [2]
    The application concerns the question of whether the provisions of that Act now preclude the applicant from bringing a claim for damages against his employer.
  1. [3]
    A statutory claim was lodged with WorkCover Queensland (“WorkCover”) and accepted.  A notice of assessment was issued on 13 September 2007 with respect to injuries to his left ankle and hind foot, and left elbow and radius.  This entitled him to seek damages having regard to the provisions of s 250 of WCRA.
  1. [4]
    There was significant delay in the preparation and service of his notice of claim (“NOC”). The reasons are not here relevant, but are referred to in an affidavit of Luke James Randall filed in the proceedings.
  1. [5]
    An initial NOC was lodged with WorkCover on 5 November 2009.  It was, because of the urgency caused by the fact that the limitation period was to expire on 17 November 2009, signed by the applicant’s solicitor, Mr Randall.  A letter to WorkCover which enclosed the NOC mistakenly proceeded on the basis that the WorkCover Queensland Act 1996 (Qld) (“WCQA”) applied. It sought a number of responses from WorkCover, namely:
  1. (i)
     Urgent advice as to the compliance of the NOC pursuant to s 282(2)(a) of WCQA, to enable s 308(1)(a)(i) of that Act to effectively extend the limitation period until 60days after the compulsory conference.
  1. (ii)
    Alternatively, agreement from WorkCover to waive any areas of non‑compliance pursuant to s 282(2)(b) of WCQA, so that s 308(1)(a)(ii) thereof could be relied on to similarly extend the limitation period.  The letter indicated that any such waiver of non-compliance “would be on the condition that our client would provide WorkCover with a Statutory Declaration remedying areas of non-compliance to WorkCover’s satisfaction.”
  1. (iii)
    Alternatively, the applicant making an application pursuant to s 305 of WCQA.
  1. [6]
    WorkCover responded by letter dated 6November 2009.  It is Exhibit LJR13 to MrRandall’s affidavit filed in the matter.  WorkCover advised that the matter was in fact governed by WCRA and not WCQA.  It also advised that WorkCover agreed there was an urgent need to start proceedings but said it:

“is not satisfied the … notice of claim complies with s 275 of the Act with respect to the event.”

  1. [7]
    It did not, however, identify the ways in which the NOC was said not to so comply.
  1. [8]
    The letter continued:

“Pursuant to s 278(2)(b) of the Act, WorkCover is willing to waive compliance on the claimant’s agreement to satisfy the following conditions imposed by WorkCover under s 276 of the Act (the agreement).”

  1. [9]
    A number of conditions were then set out as follows:

“1.  WorkCover will consider any reasonable request for an extension of any of the time frames imposed by these conditions.

2. The parties agree to proceed in accordance with the usual pre-court procedures set out in chapter 5 of the Act.

3. The parties agree to not hold the compulsory conference as required in accordance with the usual pre-court procedures set out in chapter 5 of the Act until a notice of assessment has been issued.

4. The claimant will give a copy of this fresh notice of claim to the worker’s employer within 30 days of the date of this agreement.

5. The claimant will write to WorkCover requesting that all injuries be assessed under chapter 3 part 10 of the Act as soon as possible or upon completion of this claim or when the claimant’s condition becomes stable and stationary.

6. The claimant will provide to WorkCover a written authority conforming to s 275(7) of the Act within 7 days of the date of this agreement.

7. The claimant will give a fresh notice of claim in the approved form, which satisfies the provisions of s 275 of the Act, offer and copies of documents as required under s 275(8) of the Act (herein after together with the fresh notice of claim referred to as ‘the fresh notice of claim’), at WorkCover’s registered office, within 30 days of the date of this agreement.

8. If WorkCover considers that the fresh notice of claim does not satisfy the provisions of s 275 of the Act, WorkCover will notify the claimant that further information is required, and the claimant will provide this information within 14 days of WorkCover’s notification.”

  1. [10]
    I note that these conditions did not involve the applicant providing WorkCover “with a statutory declaration remedying areas of non-compliance to WorkCover’s satisfaction”, to adopt the words of the applicant’s solicitors in their letter of 15 November referred to in paragraph [5](ii) hereof.
  1. [11]
    The letter continued:

“In order to satisfy s 302(1)(a)(ii) of the Act, WorkCover requires written confirmation from the claimant agreeing to comply with the conditions and timeframes of the agreement (see s 276(8)) before the limitation period expires.” (WorkCover’s emphasis)

  1. [12]
    WorkCover then engaged Sparke Helmore Solicitors to act on its behalf. Sparke Helmore advised the applicant’s solicitors of this by letter dated 6 November 2009 and the applicant’s solicitors acknowledged Sparke Helmore’s letter by their own letter of 10 November 2009.  Despite the requirement contained in WorkCover’s letter of 6 November that the applicant provide written confirmation agreeing to comply with the conditions and timeframes set out in its letter of 6 November 2009 prior to the expiration of the limitation period, nothing occurred until after the expiration of that time on 17 November 2009.
  1. [13]
    On 23 November 2009, the applicant’s solicitors wrote to WorkCover enclosing a fresh NOC and seeking confirmation of compliance with s 278(2)(b) of WCRA.  A copy of that NOC was also sent to the applicant’s employer, Margach Builders Pty Ltd.
  1. [14]
    Sparke Helmore replied to the claimant’s solicitors on 25November 2009 indicating:
  1. (i)
    the NOC remained noncompliant;
  1. (ii)
    the solicitors had not responded to WorkCover’s letter dated 6November 2009;
  1. (iii)
    the applicant had not therefore received the benefit of s302 of the WCRA;
  1. (iv)
    the claim was statute barred.
  1. [15]
    This view was affirmed in a further letter dated 4 December 2009, which appeared to follow some phone conversations between the solicitors.

Statutory provisions

  1. [16]
    Section302 of the WCRA provides:

“302Alteration of period of limitation

  1. (1)
    A claimant may bring a proceeding for damages for personal injury after the end of limitation allowed for bringing a proceeding for damages for personal injury under the Limitation of Actions Act 1974 only if—
  1. (a)
    before the end of the period of limitation—
  1. (i)
    the claimant gives, or is taken to have given, a complying notice of claim; or
  1. (ii)
    the claimant gives a notice of claim for which the insurer waives compliance with the requirements of section 275 with or without conditions; or
  1. (iii)
     a court makes a declaration under section 297; or
  1. (iv)
    a court gives leave under section 298; and
  1. (b)
    the claimant complies with section 295.
  1. (2)
    However, the proceeding must be brought within 60 days after a compulsory conference for the claim is held.”
  1. [17]
    In this case there is no suggestion that subparagraphs (iii) and (iv) of s 302(1)(a) of WCRA apply, since no court orders under ss 297 or 298 were sought before the end of the period of limitation, or at all.
  1. [18]
    The question to be determined is whether on or before 17 November 2009, which was the day the period of limitation expired:
  1. (i)
     the applicant gave, or is taken to have given, a complying notice of claim (s 302(1)(a)(i); or
  1. (ii)
     the applicant gave a NOC for which the insurer waived compliance with the requirements of s 275, with or without conditions (s 302(1)(a)(ii)).
  1. [19]
    If either of those requirements is met, it would then also be necessary for the applicant to comply with s 295 of WCRA as required s 302(1)(b), before starting proceedings. 
  1. [20]
    The issues that therefore arise are:
  1. (i)
     was there a complying notice of claim;
  1. (ii)
     was there a notice of claim taken to have been compliant;
  1. (iii)
     did the insurer waive compliance with the requirements of s 275.
  1. [21]
    Section 275 of WCRA provides:

“275  Notice of claim for damages

  1. (1)
     Before starting a proceeding in a court for damages, a claimant must give notice under this section within the period of limitation for bringing a proceeding for the damages under the Limitation of Actions Act 1974.
  1. (2)
     The claimant must—
  1. (a)
     give the notice of claim in the approved form to the insurer at the insurer’s registered office; and
  1. (b)
     if the worker’s employer is not a self-insurer, give a copy of the notice of claim to the worker’s employer.
  1. (3)
     The notice must include the particulars prescribed under a regulation.
  1. (4)
     The claimant must state in the notice—
  1. (a)
     whether, and to what extent, liability expressed as a percentage is admitted for the injury; or
  1. (b)
     a statement of the reasons why the claimant can not admit liability.
  1. (5)
     Any statement made by the claimant in the notice that is in the claimant’s personal knowledge must be verified by statutory declaration.
  1. (6)
     The notice must be accompanied by a genuine offer of settlement or a statement of the reasons why an offer of settlement can not yet be made.
  1. (7)
     The notice must be accompanied by the claimant’s written authority allowing the insurer to obtain information, including copies of documents relevant to the claim, and in the possession of—
  1. (a)
     a hospital; or
  1. (b)
     the ambulance service of the State or another State; or
  1. (c)
     a doctor, provider of treatment or rehabilitation services or person qualified to assess cognitive, functional or vocational capacity; or
  1. (d)
     the employer or a previous employer; or
  1. (e)
     persons that carry on the business of providing workers’ compensation insurance, compulsory third party insurance, personal accident or illness insurance, insurance against loss of income through disability, superannuation funds or any other type of insurance; or
  1. (f)
     a department, agency or instrumentality of the Commonwealth or the State; or
  1. (g)
     a solicitor, other than where giving the information or documents would breach legal professional privilege.
  1. (8)
     The notice must also be accompanied by copies of all documents supporting the claim including, but not limited to—
  1. (a)
     hospital, medical and other reports relating to the injury sustained by the worker, other than reports obtained by or on behalf of the insurer; and
  1. (b)
     income tax returns, group certificates and other documents for the 3 years immediately before the injury supporting the claimant’s claim for lost earnings or diminution of income-earning capacity; and
  1. (c)
     invoices, accounts, receipts and other documents evidencing the claimant’s claim for out-of-pocket expenses.”
  1. [22]
    It is in my view clear the NOC given on 5 November 2009 was not compliant. For example, it was, because of urgency, signed by the claimant’s solicitor. Necessarily this must mean that s 275(5) was not complied with. It was not accompanied by copies of all of the documents referred to in subsection (8).  I do not understand that this was a matter of dispute. Indeed, senior counsel for the applicant, in his submissions acknowledged there were “some minor deficiencies” and that it was signed by the solicitor.
  1. [23]
    Other relevant provisions of WCRA are ss 276, 278, 296, 297 and 298 thereof. They provide:.

“276  Noncompliance with s 275 and urgent proceedings

  1. (1)
     The purpose of this section is to enable a claimant to avoid the
  1. (2)
     Without limiting section 297 or 298, if the claimant alleges an urgent need to start a proceeding for damages despite noncompliance with section 275, the claimant must, in the claimant’s notice of claim—
  1. (a)
     state the reasons for the urgency and the need to start the proceeding; and
  1. (b)
     ask the insurer to waive compliance with the requirements of section 275.
  1. (3)
     The claimant’s lawyer may sign the notice of claim on the claimant’s behalf if it is not reasonably practicable for the claimant to do so.
  1. (4)
     The claimant’s notice of claim may be given by fax in the way provided for under a regulation.
  1. (5)
     The insurer must, before the end of 3 business days after receiving the notice of claim, advise the claimant  that the insurer agrees or does not agree that there is an urgent need to start a proceeding for damages.
  1. (6)
     If the insurer agrees that there is an urgent need to start a proceeding for damages, the insurer may, in the advice to the claimant under subsection (5), impose the conditions the insurer considers necessary or appropriate to satisfy the insurer to waive compliance under section 278(2)(b).
  1. (7)
     The claimant must comply with the conditions within a reasonable time that is agreed between the insurer  and the claimant.
  1. (8)
     The claimant’s agreement to comply with the conditions is taken to satisfy section 302(1)(a)(ii).

…

278  Response to notice of claim

  1. (1)
     This section applies if a notice of claim is given to an insurer.
  1. (2)
     The insurer must, within 10 business days after receiving the notice, give the claimant written notice—
  1. (a)
     stating whether the insurer is satisfied that the notice of claim is a complying notice of claim; and
  1. (b)
     if there is an urgent need to start a proceeding— stating that the insurer is only willing to waive compliance with the requirements if the claimant agrees to satisfy conditions imposed by the insurer under section 276; and
  1. (c)
     if the insurer is not so satisfied—identifying the noncompliance and stating whether the insurer waives compliance with the requirements; and
  1. (d)
     if the insurer does not waive compliance with the requirements—allowing the claimant a reasonable period of at least 10 business days either to satisfy the insurer that the claimant has complied with the requirements or to take reasonable action to remedy the noncompliance; and
  1. (e)
     stating whether the insurer is prepared, without admitting liability on the claim, to meet the cost of the claimant’s reasonable and appropriate rehabilitation.
  1. (3)
     If the insurer is not prepared to waive compliance with  the requirements in the first instance, the insurer must, within 10 business days after the end of the period specified in subsection (2)(c), give the claimant written notice stating that—
  1. (a)
     the insurer—
  1. (i)
     is satisfied the claimant has complied with the relevant requirements; or
  1. (ii)
     is satisfied with the action taken by the  claimant to remedy the noncompliance; or
  1. (iii)
     waives the noncompliance; or
  1. (b)
     the insurer is not satisfied that the claimant has taken reasonable action to remedy the noncompliance, with full particulars of the noncompliance and the claimant’s failure to remedy it.
  1. (4)
     If the insurer does not give the written notice  mentioned in subsection (2) within 10 business days after receiving the notice of claim, the notice of claim is taken to be a complying notice of claim.
  1. (5)
     The insurer must, within 5 business days after receiving a complying notice of claim or waiving noncompliance with the requirements of section 275, advise the employer or employers against whom negligence is alleged.

…

296  Claimant to have given complying notice of claim or insurer to have waived compliance

The claimant may start the proceeding if any of the following have happened—

  1. (a)
     at least 6 months or, for a terminal condition, 3 months have elapsed after—
  1. (i)
     the claimant has given, or is taken to have given, a complying notice of claim; or
  1. (ii)
     the insurer has waived the claimant’s noncompliance with the requirements of section 275 with or without conditions; or
  1. (iii)
     the court has made an order under section 297 or 298;
  1. (b)
     the insurer has admitted liability, but is claiming contributory liability from the claimant, a contributor or another party, and the claimant has given the insurer written notice that the extent of the admission is disputed;
  1. (c)
     the insurer has admitted liability but damages can not be agreed.

297 Court to have made declaration about noncompliance

  1. (1)
     Subject to section 296, the claimant may start the proceeding if the court, on application by the claimant dissatisfied with the insurer’s response under section 278 to a notice of claim, declares that—
  1. (a)
     notice of claim has been given under section 275;  or
  1. (b)
     the claimant is taken to have remedied non-compliance with the requirements of section 275.
  1. (2)
     A declaration that a claimant is taken to have remedied noncompliance with section 275 may be made on conditions the court considers necessary or appropriate to minimise with the requirements of section 275.

298  Court to have given leave despite noncompliance

  1. (1)
     Subject to section 296, the claimant may start the proceeding if the court, on application by the claimant, gives leave to bring the proceeding despite noncompliance with the requirements of section 275.
  1. (2)
     The order giving leave to bring the proceeding may  be made on conditions the court considers necessary or appropriate to minimise prejudice to the insurer from the claimant’s failure to comply with the requirements of section 275.”

The Issues

  1. [24]
    The applicant’s solicitor’s letter accompanying the NOC indicated there was an urgent need to start proceedings and asked the insurer to respond in one of a number of ways.
  1. [25]
    Pursuant to s 276(5) and (6) the insurer (in this case WorkCover), within the three business days referred to in subsection (5), that is, by 10 November 2009, was required to advise the applicant whether it agreed there was an urgent need to start proceedings and, if so, could impose the conditions it considered necessary or appropriate to satisfy the insurer to waive compliance. This it did, imposing condition which it considered necessary or appropriate to satisfy it to waive compliance under s 278(2)(b).  Pursuant to subsection (7) of s 276 the applicant then had a reasonable time, agreed between the insurer and the applicant, to comply.
  1. [26]
    S 278(2)(b) imposed a further obligation on WorkCover, but this was an obligation which it had 10 business days after receiving the NOC to satisfy. The 10 day period was, of course, completed only after the expiration of the relevant period of limitation.
  1. [27]
    I have already said that one of the conditions set out in WorkCover’s letter of 6 November was for the applicant to provide written confirmation agreeing to comply with the conditions and timeframes stated by WorkCover before the said expiration on 17 November 2005.  No such written confirmation was ever provided.  The applicant argues that the contexts of its letter of 5 November 2009 (which was obviously before the letter of 6 November) amounts to such written confirmation.  In particular he relies on the following words:

“Of course, any waiver of areas of non-compliance of s 282(2)(b) would be on condition that our client would provide WorkCover with a statutory declaration, remedying areas of non-compliance to WorkCover’s satisfaction.”

  1. [28]
    In respect of such an assertion, I note that even it if could be argued that such words constituted an offer by the applicant to remedy non-compliance by providing a statutory declaration dealing with all areas of non-compliance, and was capable of being accepted upon WorkCover stating the conditions thought necessary or appropriate, so as to constitute a binding agreement, the conditions imposed by WorkCover involved matters not capable of being met merely by the act of making such a statutory declaration. For example, the letter from WorkCover dated 6 November 2009 required agreement to proceed with the usual pre-court procedures, agreement to provide a fresh NOC to the applicant’s employer within 30 days, to provide a written authority under s 275(7) within 7 days and a fresh NOC and copies of documents required under s 275(8) of WCRA within 30 days.  Moreover, it specifically required “written confirmation from the complainant agreeing to comply with the conditions and timeframes of the agreement … before the limitation period expires”.
  1. [29]
    In my view, it could not have been clearer that this called upon the applicant to provide such confirmation, in writing, by 17 November 2009 at the latest and this was not done.  The offer of 5 November 2009 to “provide WorkCover with a Statutory Declaration remedying areas of non-compliance to WorkCover’s satisfaction” does not overcome this. Accordingly, it cannot in my view be seriously argued that the insurer has waived compliance with the requirement to provide a compliant NOC.
  1. [30]
    The applicant also relies on the fact that the lodging of the NOC on 5 November 2009 required a response from WorkCover pursuant to both ss 276 and 278 of WCRA. S 278(2) of WCRA requires that WorkCover give the applicant written notice of things stated therein “within 10 business days after receiving” the NOC. That was given, as I have indicated, on 5 November 2009.  WorkCover therefore had until 19 November 2009 to comply.  I note that this was two days after the expiration of the limitation period on 17 November 2009.
  1. [31]
    It appears to me WorkCover may have been under the mistaken premise that its response of 6 November satisfied the requirements of s 278.  In my view, the letter did not do so.  For example, it did not identify the ways in which it could be said the NOC given on 5 November 2009 was non-compliant (s 278(2)(c)) and did not state whether it was prepared to meet the cost of reasonable and appropriate rehabilitation (s 278(2)(e)).  Furthermore, it did not state that it allowed the applicant a reasonable period of at least 10 business days to satisfy WorkCover that he had complied with the requirements or taken reasonable action to remedy the non-compliance (s 278(2)(b)). 
  1. [32]
    WorkCover’s non-compliance with these provisions directs attention to s 278(4) of the Act.  The subsection provides that in such circumstances the NOC is “taken to be a complying notice of claim”. It is to this event that the provisions of s 302(1)(a)(i) is directed.
  1. [33]
    The important issue to be determined is whether that provision means it is taken to be compliant from the expiration of the 10 business days after receiving it, which would be after the expiration of the relevant limitation period and hence not meet the pre-requisite requirement of s 302(1)(a) of WCRA (that it gives or be taken to have given a complying NOC before the end of the period of limitation or gives a NOC for which the insurer waives compliance before the end of the said period) or whether it operates so as to be taken to have been compliant from the time it was given on 5 November 2009.
  1. [34]
    Senior counsel for the applicant submits that “the crux of this matter comes down to the interpretation (of the respondent’s solicitor’s letter of 6 November 2009)”.
  1. [35]
    In my view, it really comes down to the legal consequence of the face WorkCover did not respond as s 278 requires, but that before the expiration of the period allowed to it to do so, the limitation period for the action expired.

Handover v Consolidated Meat Group Pty Ltd

  1. [36]
    A similar matter came before Wilson J in Handover v Consolidated Meat Group Pty Ltd (2009) QSC 41.  In Handover, the applicant had suffered injury on 3 February 2005.  Because 3 February 2005 was a Sunday, the limitation period expired at midnight on Monday 4 February 2008.  On 14 January 2008 a notice of assessment in respect of an alleged cervical spinal aggravation was issued, with a stated work related impairment of 0%.  On 30 January the applicant rejected the offer of lump sum compensation and a NOC was sent to the insurer. It was received on 1 February 2008.  It was a non-compliant NOC.  The insurer forwarded it to its solicitors, and it was received by them at about 3 pm on 4 February.  The particular solicitor who was to handle it was then out of the office. When he returned at about 5 pm he saw it but was unaware of the urgency associated with it. He did not become so aware until the following day, by which time the limitation period had passed.
  1. [37]
    The provisions of s 295 of WCRA required compliance with various matters, including giving a NOC and accompanying documents in compliance with s 275, before the applicant was able to commence proceedings. 
  1. [38]
    In that case, the applicant did not seek orders under s 297 or 298 of WCRA but instead sought orders under s 287 compelling the insurer to give a waiver of compliance under s 275, and, in the alternative, sought an order deeming that compliance had been waived. He also had sought a declaration that s 302(1)(a)(ii) had been invoked and that the NOC, since there was no response from the insurer under s 278(2), invoked s 302(1)(a). 
  1. [39]
    Her Honour’s reasoning, rejecting the applicant’s arguments in that case, are principally contained at paragraph 20ff her judgment.  At paragraph 24 she said:

“For the limitation period to be altered under s 301(1)(a)(ii), the claimant must give a notice of claim before the end of the limitation period.  In my view the insurer’s waiver of compliance with s 275, whether with or without conditions, must also occur before the end of the limitation period.  Because it is waiver of compliance with requirements to be fulfilled before the commencement of litigation, this construction of s 302(1)(a)(ii) is consistent with the overall scheme of s 302(1), which is to alter the limitation period where defined events have taken place before its expiration.  And it is consistent with the accepted view that the Court’s power under s 298 to give leave to commence a proceeding despite non-compliance with s 275 does not include power to give leave retrospectively to regularise a proceeding already commenced.”

  1. [40]
    Her Honour footnoted the last sentence in that paragraph, referring to Roberts v Australian and New Zealand Banking Group Ltd [2006] 1 Qd R 482 and Wilkinson v Stevensam Pty Ltd [2006] QCA 88 at para 43.  She noted that although those cases were decided under the WorkCover Queensland Act 1996, and not under the WCRA, the reasoning therein was applicable to the WCRA.
  1. [41]
    In Handover senior counsel for the applicant, who incidentally appeared as senior counsel for the respondent before me, said that because the insurer did not comply fully with its obligations under s 278, that the NOC was taken to be a complying NOC.  He relied on the provisions of s 278(4) of the Act, so as to satisfy s 302(1)(a)(i). 
  1. [42]
    It seems to me that such argument was substantially the argument relied on by the applicant before me.
  1. [43]
    At paragraph 31 of the judgment, her Honour said:

“Where s 278(4) applies, its effect is to deem a notice of claim to be a complying one at the end of the 10 days allowed to the insurer to respond.  On any view of the present facts, that occurred after the expiration of the limitation period.  The proper construction of s 302(1)(a)(i) is, in my view, that not only must a notice of claim be given before the expiration of the limitation period, but also that notice of claim must be either a complying one or one that is, before the expiration of the limitation period, taken to be a complying one.  Any other construction of s 302(1)(a)(i) would be inconsistent with overall scheme of s 302(1).”

  1. [44]
    I concur with her Honour’s approach to this matter. 
  1. [45]
    Senior counsel for the applicant said that Handover could be “readily distinguished” from the facts of the matter before me.  It was said that the applicant in Handover “did not argue that the notice was a complying notice” but rather that it was “taken to be” a complying notice, and did not argue that it was a complying notice “at the time it was given”.  Senior counsel also argued before me that the fact the applicant took steps after the expiration of the limitation period to ameliorate deficiencies with the notice of claim so as to remedy non-compliance as occurred in this case, distinguished it from Handover.
  1. [46]
    In my view, such matters did not derogate from the force of what her Honour said in Handover.
  1. [47]
    In my view, the wording in s 302 clearly requires that:
  1. (A)
     a compliant NOC be given before the end of the period of limitation; or
  1. (i)
     a notice is taken to have been given as a complying notice before the end of the period of limitation; or
  1. (ii)
     the claimant gives an NOC for which the insurer waives compliance with or without conditions before the end of the period of limitation; or
  1. (iii)
     a court makes orders under s 297 or 298 before the end of the period of limitation; and
  1. (B)
     the claimant complies with s 295.
  1. [48]
    We are here concerned with the question of whether the applicant has complied with any of the requirements of paragraphs (i) to (iv) above. Iin my view, he has not done so.
  1. [49]
    Senior counsel for the applicant sought, as I have said, to distinguish Handover on the basis that in that case the applicant did not argue that the notice was a complying notice, but rather that it was taken to be a complying notice.  In my view, this is not a valid basis on which to distinguish the case.  If the NOC in this case was a complying notice, then in accordance with Lau v WorkCover Queensland 2002 QCA 244 the applicant would be entitled to proceed.  It was submitted by senior counsel for the applicant that Lau v WorkCover Qld (supra) “makes it clear that for the purposes of s 308(1)(a)(i) of the then WCQA, the court can make a determination of whether a notice of claim is compliant after the expiry of the limitation period”.  That is so, and clearly Lau was such a case.  It is important to recognise, however, that Lau was concerned with an application for a declaration that the injured worker’s NOC had been given in accordance with s 280 of the Act so as to enable the worker to take advantage of s 308(1)(a)(i) of WCQA.  It did not concern a declaration to be made under s 304 of that Act, which would had to have been made before the end of the period of limitation due to the clear requirements of s 308(1)(a) of that Act. 
  1. [50]
    In this case, if the applicant had given a compliant NOC before the end of the period of limitation, or given one which was deemed, before the end of the period of limitation, to have been compliant, then the issue would not have arisen. If he had given a compliant notice but WorkCover mistakenly asserted to the contrary, then, after the end of the period of limitation, he could have sought a declaration that the NOC was compliant even though the end of the period of limitation had then passed. That is what occurred in Lau. The provisions of s 302(1)(a) of the WCRA are not materially different from those of s 308 of WCQA considered in Lau. 
  1. [51]
    Senior counsel for the applicant also asserts the applicant has “given a complying notice” within the meaning of s 302(1)(a)(i) of WCRA. The argument it had done so, in circumstances where the original NOC did not comply with the requirements of s 275 relies on the fact that a subsequent NOC was provided to WorkCover following the expiry of the limitation period. It is said that this NOC, in conjunction with the NOC given on 5 November 2009, meets the requirements of s 275 of WCRA.
  1. [52]
    In my view, the subsequent notice did not meet the requirement of s 275(1) which requires the notice to be given “within the period of limitation for bringing a proceeding for the damages under the Limitation of Action Act 1974”. The delivery of a NOC after the period of limitation otherwise complying with s 275 does not satisfy the requirement of s 302(1)(a)(i) of WCRA.
  1. [53]
    The fact that in Handover the applicant did not argue that the notice was a complying notice, but rather that it was taken to be a complying notice is of no significance. 
  1. [54]
    Similarly, I do not believe that the submission made by senior counsel for the applicant in this case that there was action taken after the limitation period to ameliorate deficiencies with the NOC is a proper basis on which to distinguish Handover.  The point is, as decided in Handover, and in this case by me, that because the notice was not compliant at the time of the expiration of the period of limitation and had not been deemed before the end of the period of limitation to have been then compliant, (or compliance was not waived before that time) the applicant is unable to bring himself within the provisions of s 302(1)(a) of the Act.
  1. [55]
    Senior counsel for the applicant also relied on the decision in McKelvie v Page (1999) 2 Qd R 259.  In that case, the plaintiff was injured in a motor vehicle accident on 27 July 1995.  A NOC was served on the Nominal Defendant on 27 July 1998, and the Nominal Defendant responded on 6 August 1998, outside the limitation period (which expired on the day the NOC had been served).
  1. [56]
    The case concerned an application for leave nunc pro tunc to bring proceedings. The relevant section of the Motor Accident Insurance Act was s 39, especially subparagraphs (5), (6), and (7) thereof.  Wilson J concluded that she did have power to grant leave nunc pro tunc and appeared to have relied on the following in so concluding:
  1. (i)
     section 39(5)(c) of the Motor Accident Insurance Act did not specify any time within which an application for leave could be made (see paragraph 22 of Her Honour’s reasons);
  1. (ii)
     in that regard, the subsection was similar to that found in company legislation requiring leave of the court before proceeding with or commencing proceedings against a company in liquidation and such provisions were commonly interpreted as giving power to give leave nunc pro tunc (para 22);
  1. (iii)
     that there was a difference in tense between the requirements of the subparagraphs of s 39(5) and this was an indication that leave could be given nunc pro tunc;
  1. (iv)
     that to do so was not inconsistent with Court of Appeal decision in Young v Keong (CA 2202 of 1997, 22 May 1998 unreported) which Her Honour said left the question open (see paras 13, 14 and 24 of her judgment);
  1. [57]
    Although her Honour found she did have power to grant leave nunc pro tunc, in the exercise of her discretion in that case she refused to do so because there was no evidence from which she could draw an inference of negligence in the action.
  1. [58]
    Her Honour’s determination that leave could be given nunc pro tunc was disavowed by the Court of Appeal in the decision of Horinack v Suncorp Metway Insurance Ltd [2000] QCA 441.  At paragraph 20 of her reasons, White J (as she then was), with whom McPherson JA and Jones J agreed, said:

“It follows that s 39(5)(c) does not confer a general discretion on the court to give leave to bring a proceeding in a court despite non-compliance, if the application to do so is brought outside the period of limitation.  There is, therefore, no basis as a matter of construction for making such an order nunc pro tunc and it follows that the statement in McKelvie v Page (1999) 2 Qd R 254 that leave can be granted nunc pro tunc cannot stand.”

  1. [59]
    Earlier in the judgment at paragraph 18 Her Honour, again in a passage with which the other members of the court agreed, said;

“[18]Contrary to the submissions advanced on behalf of Ms Horinack an application of leave to bring proceedings must be brought within the ordinary limitation period. That this is so is clear from s 57 of the Act. It provides:

‘(1) If notice of a motor vehicle accident claim is given under Division 3 (Claims procedures), or an application for leave to bring a proceeding based on a motor vehicle accident claim is made under Division 3, before the end of the period of limitation applying to the claim, the claimant may bring a proceeding in court based on the claim even though the period of limitation has ended.’”

  1. [60]
    In my view, the observations of Muir J (as he then was) at first instance in that case (Lau v WorkCover Queensland (2000) QSC 271 especially at [45]) also support the view I have taken.
  1. [61]
    Under the circumstances, I can find nothing in these cases that can be relied upon to disavow the force and effect of what Wilson J said in Handover (supra).  In my view, that case clearly supports the proposition that, under the Workers’ Compensation and Rehabilitation Act, it is necessary that, prior to the end of the period of limitation, a claimant gives a complying NOC, or is taken to have given a complying NOC, or gives a NOC for which the insurer waives compliance, or the court makes orders under ss 297 or 298. 

Order

  1. [62]
    In circumstances where no complying NOC was given before the expiration of the period of limitation, and where it was not taken to have been given, and the insurer did not waive compliance at any time, let alone prior to the end of the period of limitation, and no order has been sought under ss 297 or 298, I find that the applicant is unable to commence proceedings.  Accordingly, the applicant’s application in these proceedings is dismissed.
  1. [63]
    No order for costs was sought because of the provisions of the WCRA and the decision of Edmunds v D Dunn Industries & Anor [2006] QSC 230 (and see also Handover (supra) at [39]).
Close

Editorial Notes

  • Published Case Name:

    Greengrass v Margach Builders Pty Ltd

  • Shortened Case Name:

    Greengrass v Margach Builders Pty Ltd

  • MNC:

    [2010] QDC 396

  • Court:

    QDC

  • Judge(s):

    Reid DCJ

  • Date:

    19 Oct 2010

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
Edmunds v D Dunn Industries Pty Ltd[2007] 2 Qd R 128; [2006] QSC 230
1 citation
Jump To
Cite 1 - [2006] QSC 230
Handover v Consolidated Meat Group Pty Ltd[2009] 2 Qd R 133; [2009] QSC 41
3 citations
Jump To
Cite 1 - [2009] QSC 41
Cite 2 - [2009] QSC 41
Cite 3 - [2009] QSC 41
Horinack v Suncorp Metway Insurance Ltd[2001] 2 Qd R 266; [2000] QCA 441
3 citations
Jump To
Cite 1 - [2000] QCA 441
Cite 2 - [2000] QCA 441
Cite 3 - [2000] QCA 441
Lau v WorkCover Queensland[2003] 2 Qd R 53; [2002] QCA 244
1 citation
Jump To
Cite 1 - [2002] QCA 244
Lau v WorkCover Queensland [2000] QSC 271
2 citations
Jump To
Cite 1 - [2000] QSC 271
Cite 2 - [2000] QSC 271
McKelvie v Page [1999] 2 Qd R 259
2 citations
Jump To
Cite 1 - [1999] 2 Qd R 259
Cite 2 - [1999] 2 Qd R 259
McKelvie v Page (1999) 2 Qd R 254
1 citation
Jump To
Cite 1 - (1999) 2 Qd R 254
Roberts v Australia and New Zealand Banking Group Ltd[2006] 1 Qd R 482; [2005] QCA 470
2 citations
Jump To
Cite 1 - [2006] 1 Qd R 482
Cite 2 - [2006] 1 Qd R 482
Wilkinson v Stevensam Pty Ltd [2006] QCA 88
2 citations
Jump To
Cite 1 - [2006] QCA 88
Cite 2 - [2006] QCA 88

Cases Citing

Case NameFull CitationFrequency
Scott v Q Catering Ltd [2011] QSC 3262 citations
Vivian v Gameover Pty Ltd [2024] QSC 263 2 citations
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.