Prentice v Harbrew Pty. Ltd.[2011] QDC 179

HIS HONOUR: The court makes an order in terms of the initialled draft which gives the applicant leave to commence a proceeding for the purposes of section 43 of the Personal Injuries Proceedings Act 2002. The limitation period runs out today.

The applicant who was at the time driving a forklift in his employment suffered injuries when a bucket suspended between two cranes, which he was assisting to manoeuvre, collapsed on his forklift. This was seen as an ordinary workplace injury until late last week when disclosure by WorkCover revealed to the applicant's solicitors that the two cranes were independently owned and working on the construction site under wet hire arrangements, i.e. ones involving the provision of an operator as well as equipment. That discovery which depends in significant measure on a statement by an employee of the first respondent indicates the participation of the first respondent and also the second and third respondents, the last two being involved as they have been in an attempt to avoid problems in identification of the correct party.

Mr Williams for the applicant accepts that service, which ought to be personal service, is required of an application such as the present and indeed, service three business days before the hearing under rule 27. That rule is among many which allows the court to temper matters to accommodate situations of emergency like the present. Others can be founds in rules 266, 267 and perhaps 371, among others.

Decisions of high authority establish that an indulgent approach is appropriately taken when a person with what appears to be a reasonable claim faces being shut out by the expiration of the limitation period.  I see Mr Williams' helpful written submissions refer to Gilham v Queensland [2004] 2 QdR 251, Hinkin v Riseley [2006] QDC 254 and Nestorovic v Milenkovic [2010] QSC 143.

Reasonable attempts in the circumstances have been made to notify the respondents/proposed defendants of today's application and indeed, last week - last Friday to be precise, a Part 1 Notice of Claim was prepared and sent to each of them. Mr Ridley's affidavit shows that notification of today's application was made by faxing the appropriate documents yesterday after telephone contacts had identified appropriate fax numbers and that the intended recipients’ fax equipment was working. The faxes were then sent and telephone confirmation that they'd been received was obtained. None of the respondents appeared today when the Bailiff called their names outside the court. That is perhaps unsurprising.

The appropriate way to proceed is to make the orders sought on the basis that the respondents in the circumstance of the order being made behind their back, so to speak, will have the opportunity to approach the court to seek to have the order set aside or changed. At least Mr Prentice has the opportunity to file his claim and not run foul of a limitation period. The risk that the recently disclosed information poses of the employer being able to establish that it's not liable is ample justification for the court to exercise its discretion in the way it does. Exhibit 1 is a copy of a corrected statement of claim which amends in minor respects the one which has been made available to the respondents for their information. The material sent to the respondents indicated in a covering letter, as well as in the court documents, that the application was returnable at this time. Order as per initialled draft.

MATTERS INTERPOSED

HIS HONOUR: This is a further mention of Prentice v Harbrew Pty Ltd & Ors 2956 of 2011 which was dealt with first among the matters in today's list and completed about 10.45 a.m. when my Associate received by e-mail from the Registry a copy of a letter received in the Registry shortly after 10 o'clock from the first respondent. It, understandably, complained of the short notice and made the case that the company ought to be allowed a reasonable time to consider its position and determine appropriate action.

Other comments were made such as the oddity of the other respondents being two when for all that appeared they ought to have been one only.

My Associate has sent a copy of that communication to the applicant's lawyers who have advised her that they had received it themselves. She tells me that they've offered to attend should the court wish to bring the matter back on. There's been no time today to do that. The circumstances were ones in which by now, it being 20 past 5 in the afternoon, unless the applicant is to lose his opportunity to pursue a claim in respect of his injuries, he will miss out forever.

In those circumstances, the order should be allowed to remain on foot but subject to the entitlement which the court acknowledged this morning of any or all of the respondents to apply to have it set aside on appropriate grounds. I'll mark Exhibit 2 a copy of Harbrew Pty Ltd's communication.

ADMITTED AND MARKED "EXHIBIT 2"