Leonard v Skilled Group Ltd[2011] QDC 242

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application to consolidate two proceedings that were commenced on the same day by the plaintiff. The plaintiff is in the unfortunate position of having been injured at work while he was working for a labour hire company which had hired his labour to a particular company, within the premises of which the injury occurred.

2. [2]
   In these circumstances, there is potentially a claim against the employer, because of the employer’s obligations, which are non-delegable, and which is governed by the Workers’ Compensation and Rehabilitation Act 2003, and a claim against the company at the premises of which the injury was suffered, which would arise, at least, on the basis of occupier’s liability, and quite possibly on the basis that it was that company that was organising the work, and therefore had responsibilities to the people who were involved in doing the work on the premises.  In any event, potentially, there are two different claims.

3. [3]
   Broadly speaking, the former claim is governed by the 2003 Act. The latter claim is governed by the Personal Injuries Proceedings Act 2002.

4. [4]
   The pre-litigation procedures were carried out separately under each regime as they are required to be, although the parties cooperated so that, for example, one compulsory conference was held involving the representatives of all three, at which, sadly, the matter was not resolved. The plaintiff finalised the pre-litigation procedures and then commenced the two separate proceedings.

5. [5]
   The defendant in the claim 3062 of 2011, who is the employer, the labour hire firm, sought to consolidate the proceedings, arguing that the commencement of two actions was unnecessary.

6. [6]
   Ordinarily, having two actions if one will do will produce additional costs and additional work, which is unnecessary and inefficient. Two filing fees have to be paid, and I suspect, in the fullness of time, two hearing fees will have to be paid under the new regime.

7. [7]
   There would have to be separate pleadings in each proceeding, and there would be at least formal duplication of things, like disclosure, the holding of a compulsory conference and the signing and exchanging and filing of a request for trial date.

8. [8]
   I do not know that there would be any particular waste of court sitting time in having two rather than one action, but it does mean that two files have to be maintained by the court.

9. [9]
   There are some disadvantages, perhaps, in having one action rather than two. In circumstances where there are different legislative regimes governing two separate claims, it may simplify things if there is a separate action for each regime, so that it can be said with some degree of confidence that one action is governed by one regime and the other one is governed by the other.

10. [10]
    However, for most purposes, at least, it seems to me that the intellectual difficulties generated by the existence of separate and, in some respect, different regimes in respect of the claims against each of the two parties will arise in any event, and will present the same intellectual challenges for the judge, whether they arise in one action or two actions, not that I would suggest that the judges of this court would not be equal to those challenges.

11. [11]
    There is, however, I think, at least potentially, one difficulty in consolidation, and that arises because each of the statutes has a legislative regime restricting, to some extent, the orders that can be made in relation to questions of costs.

12. [12]
    The 2003 Act is the more prescriptive in this respect, because the relevant provision which appears to be s 316 starts by providing that no order about costs other than an order allowed under this section is to be made by the court in the claimant’s proceeding.

13. [13]
    The Act was amended at some point to insert into the division where s 316 appears, s 318E, which provides:

“If an entity other than a defendant that participated in a compulsory conference is joined as a defendant in a proceeding for damages, the Court may make an order about costs in favour of or against the entity according to the proportion of liability of the defendants and the justice of the case.”

14. [14]
    In the present case, the non-employer defendant in fact participated in the compulsory conference, but that arose because what was held was a compulsory conference in satisfaction of both the 2003 Act and the 2002 Act. It is not immediately clear to me whether the effect of what occurred meant that the non-employer defendant is regarded as a defendant that participated in the compulsory conference under the 2003 Act, at least for the purpose of s 318E.

15. [15]
    Assuming that it is not, it would appear, therefore, that s 318E deals with the question of what order for costs may be made in favour of or against that defendant; however, there are provisions in PIPA which also deal with the question of what orders for costs can be made in proceedings in relation to claims which are governed by that Act.

16. [16]
    If the claim against both defendants is run in the same proceeding, then potentially there is a conflict between the PIPA provisions and s 318E.  It may well be that in particular circumstances, that conflict would not arise, and I have not satisfied myself conclusively, by any means, that it would necessarily arise in the present matter.

17. [17]
    The plaintiff’s position in opposing the consolidation and, indeed, in justifying his original decision to create separate proceedings, is simply that this is a difficulty which can be avoided by having the separate proceedings, and that most of the advantages of consolidation can be achieved by ordering that the two proceedings be heard together.

18. [18]
    The theoretical difference between consolidation and hearing the proceedings together is that the former produces one proceeding from the date of consolidation, whereas the latter refers to separate ones. The practical difference is usually that in the former, you have to do the pleadings again from scratch, whereas in the latter, the pleadings and, indeed, other interlocutory steps are dealt with as if they are separate actions.

19. [19]
    The practicalities of running a trial are very much the same in both cases, but at the end of the day, the formulation of the judgment will be different. I do not think there should be any practical difference in terms of the outcome, however, depending on whether there is a judgment in one action or a judgment in the two of them. There will be greater complexity because of claims for contribution, and possibly other claims, such as indemnities and so on, between the defendants.

20. [20]
    There is, I think, in principle, some advantage in terms of efficiency in having one proceeding rather than two, and ordinarily, it would be better to have one proceeding, at least unless the position had advanced to the point where the costs involved in, for example, doing pleadings again would not be worth the advantage. This is not such a case. The application has been made relatively promptly.

21. [21]
    It does seem to me, however, that the fact that the 2003 Act at least attempts, in some circumstances, to regulate the costs regime between the plaintiff and the non-employer defendant, produces a potential for conflict with the regime under PIPA, and in those circumstances, I think that there is some practical advantage in having two proceedings rather than one, in that it would avoid the generation of that conflict.

22. [22]
    No doubt, the conflict could be overcome, but it is a feature of this legislation that it does not properly take into account situations such as this, situations such as an employee of a labour hire company who is injured whilst working at the host employer. Unless and until a legislative regime is put into proper order so that it does adequately deal with this situation in the one statute, which would be the sensible way to do it, it does seem to me that it is understandable that an injured plaintiff would consider it a safer course to deal with the problems of potential inconsistency of the statute by having separate proceedings, so that there is no doubt that the 2002 Act applies only and exclusively to one proceeding, and the 2003 Act only and exclusively to the other one.

23. [23]
    I am not sufficiently confident that the potential conflict produced by s 318E if the proceedings are consolidated would not have unforeseen consequences for me to be confident to be able to say that there are not disadvantages, no significant adverse consequences to the plaintiff in terms of costs, depending on what may ultimately happen.

24. [24]
    If the problem posed by that provision, or if there is litigation that exposes the problem posed by that provision, because apart from anything else, I simply do not have a clear understanding of how that provision would apply in such a situation.

25. [25]
    That it can have some effect has already been exposed in the decision to which I have referred, of Aziz v Prestige Property Services Pty Ltd [2007] QSC 277, where it appears to have affected the costs order that was actually made as between the plaintiff and the non-employer defendant, in a case where a single proceeding was brought against both the employer and the non-employer defendants, and an interlocutory order was made.  I should say that I have no reason to doubt the analysis adopted in that decision, particularly at paragraph [17].

26. [26]
    In other respects, I do not think that the practical difficulties associated with consolidation are very great, and I think it would have been probably more sensible, but for this problem, to have brought the one proceeding, and therefore, these two proceedings should be consolidated. But I think that s 318E, for practical purposes, is a difficulty.  It might almost be described as a fairly small, but quite hazardous, minefield, and I think it is reasonable enough for the plaintiff to want to avoid it, and to have avoided it in the way that he has.

27. [27]
    The appropriate course, therefore, in my view, is to continue to avoid the situation simply by ordering that the two matters be heard together, that is, D3062/2011 and D3063/2011, and I will order that evidence led be evidence in both proceedings.