Hatzipapas v Delta Global Group Pty Ltd
[2011] QDC 46
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- Unreported Judgment
- Hatzipapas v Delta Global Group Pty Ltd[2011] QDC 46
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Hatzipapas v Delta Global Group Pty Ltd[2011] QDC 46
Hatzipapas v Delta Global Group Pty Ltd[2011] QDC 46
DISTRICT COURT OF QUEENSLAND
CITATION: | Hatzipapas v Delta Global Group Pty Ltd & Anor [2011] QDC 46 |
PARTIES: | Perry Hatzipapas (Applicant) v Delta Global Group Pty Ltd (First Respondent) and Steve Konstantinou (Second Respondent) |
FILE NO/S: | BD 1031 of 2011 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | Brisbane |
DELIVERED ON: | 15 April 2011 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 8 April 2011 |
JUDGE: | Griffin SC, DCJ |
ORDER: | The applications are dismissed. |
COUNSEL: | R. Morgan for the Applicant D. Atkinson for the Respondent |
SOLICITORS: | Carter Capner Law for the Applicant Barry Nilsson for the Respondent |
- [1]By his application the applicant seeks:
- (i)Leave to start a proceeding in the court despite non-compliance with chapter 2, parts 1 and 2 of the Personal Injuries Proceedings Act (“PIPA”) pursuant to section 43 of the Act;
- (ii)Alternatively leave to commence proceedings against the respondents pursuant to section 59 of PIPA;
- (iii)An extension of time in which to commence proceedings pursuant to section 31 of the Limitations of Actions Act 1974.
History of the matter
- [2]The applicant was working at a food wholesale business and was asked by the second applicant to commence work for him on the basis that if the applicant had his own company and an ABN he would be able to claim expenses as tax deductions. The applicant in fact caused a company to be incorporated and obtained an ABN and the first respondent entered into an agreement not with the applicant but the company which incorporated (Colossus Distributors Pty Ltd) although the effect of the arrangement was that the company would provide services of the applicant to Hellene Food Brokers, the business operated by the second respondent. The arrangement provided that the applicant would visit the customers of that business for the purpose of selling them food products and would deliver weekly invoices to Hellene Food Brokers for a weekly sum from which the applicant would pay relevant car and telephone expenses. [1]
- [3]Relevantly, the arrangement which was made although not of employer/employee was none the less believed to be so by the applicant.
- [4]On 29 April 2005 the applicant was injured whilst working at the Hellene premises when attempting to obtain a bag of milk powder he fell backwards from the ladder on which he was situated and fell to the floor.
- [5]On 20 September 2005 the applicant lodged a claim with WorkCover Queensland which was denied in January 2006. On 18 September 2007 a review of the refusal was lodged with Q-COMP but was rejected in October 2007.
- [6]In May 2010 the applicant’s solicitor referred him to Carter Capner Solicitors in relation to a potential personal injuries claim and was informed on 5 August 2010 that the applicant might have a claim against the respondents as occupiers of the premises. By 15 November 2010 the applicant instructed those solicitors to prosecute his claim.
The Law
- [7]Section 31(2) of the Limitation of Actions Act 1974 (Qld) provides that:
“Where an application to a court by a person claiming to have a right of action to which this section applies, it appears to the court:
- (a)That a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action;
- (b)That there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation
the court may order that the period of limitation for the action be extended so that it expires at the end of one year after that date and thereupon, for the purposes of action brought by the applicant in that court, the period of limitation is extended accordingly.”
- [8]Section 30(1)(c) of the Limitation of Actions Act 1974 (Qld) provides that:
“…a fact is not within the means of a person at a particular time if, but only if:
- (i)he does not at that time know the fact; and
- (ii)so far as the fact is capable of being ascertained by him, he has before that time taken all reasonable steps to ascertain that fact.”
- [9]The cases make clear that ignorance of the law cannot constitute a material fact for the purpose of the provisions. In Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234, the High Court considered an argument that ignorance of the existence of a cause of action was itself a ground for the extension of the limitation period. All members of the High Court, except Murphy ACJ, rejected that argument. They noted that the authorities make a distinction between, on the one hand, material facts and, on the other hand, knowledge of the legal consequences of those facts.
- [10]In Dick v University of Queensland,[2]Cullinane J noted “a material fact for the purposes of Part 3 of the Limitations of Actions Act is limited to the acts or omissions giving rise to a cause of action. It does not extend to knowledge of the legal effect or consequences of those facts. See Do Carmo v Ford Excavations Pty Ltd.”
Chronology
- [11]It is helpful to enlarge an understanding of the cause of and history of this matter by reference to exhibit 1 which was tendered in these proceedings by the respondents and accepted as accurate by the applicant.
Brief summary of relevant dates
29 April 2005 – Incident occurred.
20 September 2005 – lodged compensation claim with WorkCover
6 January 2006 – WorkCover claim rejected
18 September 2007 – lodged application for review of the denied claim
16 October 2007 – WorkCover appeal rejected
22 November 2007 – contacted member of parliament for assistance (no response)
15 January 2008 – contacted a different member of parliament (no response)
2010 – condition flared up
15 July 2010 – discussion with Thomas Drakopoulos (commercial lawyer) about another matter and mentioned this issue in passing. Mr Drakopoulos told the claimant to contact a personal injuries lawyer
22 July 2010 – Mr Drakopoulos contacted Peter Carter to inform him that Mr Drakopoulos had referred the claimant to him in relation to a potential personal injuries claim
Claimant busy setting up new business
5 August 2010 claimant telephones Peter Carter. Also attended their offices on the same day for a meeting.
Prior to this time, the claimant alleges he had no idea that he could obtain compensation from another source other than WorkCover
24 November 2010 – Instructed Carter Capner
25 November 2010 – part 1 notice of claim issued
1 December 2010 – respondent acknowledged receipt of the claim
December and January 2010 – correspondence between Carter Capner & QBE
The affidavit material of the applicant demonstrates that immediately after the accident the applicant was aware, in my opinion, of all matters relevant to a cause of action and this was known within the limitation period. That is to say:
- (i)The applicant was injured whilst working at the premises of the respondent;
- (ii)The injury occurred when he fell from a ladder;
- (iii)The work which he was carrying out on the ladder did not involve the respondents supplying any safety equipment;
- (iv)The applicant sustained an injury which required a short admission to hospital;
- (v)The applicant sustained loss of income and incurred medical expenses;
- (vi)The applicant sought to remedy his situation by making a Workers Compensation claim;
- (vii)The Workers Compensation claim was finally rejected in October 2007.
The Applicant’s Submissions
- [12]The applicant makes in a collective way, the following submissions in relation to the factors which should, it is argued, give rise to its application of succeeding namely:
- [13]The relevant “material fact(s) of a decisive character relating to the right of action” within the meaning of s 31(2)(a) and ss 30(1)(a), 30(1)(b) and 30(1)(c) of the Limitations of Action Act 1974 (Qld) were the following:
- (i)the Respondents or one of them were “an occupier” and not an employer;
- (ii)that there were breaches of duty by the Respondents owed by them as occupiers of premises as opposed to breaches of duty, breach of contract and breach of statutory duty owed by them as employers, which could give a right of recovery;
- (iii)because there was an implied contractual duty owed by the Respondents, the existence of a contract was a material fact;
- (iv)that the system under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) was not the exclusive means by which the Applicant could recover compensation or damages. This was a material fact;
- (v)that there was an alternative safe system of work which could have been followed by the occupier. N.B. Prior to seeing Carter Capner the Applicant was only aware of statutory benefits. His WorkCover claim doesn’t contemplate a breach of a duty of care. Compare his PIPA Notice of Claim which at paragraph 9 particularises a failure to provide safety equipment and in paragraph 18 sets out particulars of the breach of duty of care. The lack of knowledge of an alternative safe system of work was a material fact of a decisive nature. (Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 at 258 per Dawson J). This is particularly so here where before seeing solicitors he did not know he could have a common law right of action.
- [14]In relation to section 30(1)(c) of the Limitations of Action Act 1974 (Qld) Keane JA said in NF v State of Queensland[3], “It is to be emphasized that section 30(1)(c) does not contemplate a state of knowledge of material facts attainable in the abstract…It speaks of a state of knowledge attainable by a actual person who has taken all reasonable steps. The actual person is the particular person who has suffered particular personal injuries. Whether an applicant for an extension of time has taken all reasonable steps to find out a fact can only be answered by reference to what can reasonably be expected from the actual person in the circumstances of the applicant.”
- [15]In this case the applicant, prior to seeing solicitors, believed he was an employee and had no knowledge of the availability of common law proceedings.
- [16]It is argued that within the last 12 months it has come to the applicants knowledge that the real circumstances of his work and in particular, the absence of a safe system of work at the time of the accident are the factors contemplated by the section of the Limitations of Action Act 1974 (Qld) which should give rise to the application being successful. Furthermore it is said, that the applicant took all reasonable steps in accordance with the view expressed on that test by Keane JA in NF v State of Queensland.
- [17]I am however, entirely satisfied that the applicant knew all relevant facts concerning the accident, his injuries and financial loss sustained by the accident. Furthermore, the acquiring by him of knowledge in relation to the need for a safe system of work even although he did not understand the true nature of his employment is not a sufficient factor to be regarded as a “material fact of a decisive character”. Furthermore, in my opinion, the time delay and reliance on lack of knowledge of the absence of a safe system of work for the ladder does not satisfy any appropriate notion of “taking all reasonable steps”.
- [18]It is inappropriate, in my opinion, should the formal requirements of section 31 be regarded as being satisfied, to exercise discretion in the applicant’s favour for the following reasons:
- (a)Almost six years have past since the accident;
- (b)The applicant (by reference to the chronology) cannot either by reference to that chronology or in his affidavit properly explain, in my view, the considerable delay between January 2006 and September 2007, January 2008 and May 2010 and August to November 2010.
- [19]Although there is no specific prejudice identified with respect to the respondents nonetheless the effluxion of time is likely to have some general prejudicial effect, even though the circumstances of the accident and the applicant’s injuries were known to the second respondent at the time.
Personal Injuries Proceedings Act – sections 43 and 59
- [20]An applicant suffering personal injuries in a situation not governed by the Motor Accident Insurance Act 1994 (Qld) or the WCRA is obliged to comply with the pre-proceedings steps under Chapter 2, Parts 1 and 2 of the PIPA which notably include the service of a Notice of Claim, the provision of all relevant documents and information relating to the claim, the holding of a compulsory conference (unless doing so is agreed to be dispensed with by the parties or excused by the Court) and if the matter is not settled, the exchange of written mandatory final offers which must remain open for 14 days, prior to proceedings being commenced. The Applicant has served Notices of Claim on both Respondents. The relevant sections of the PIPA include the following:
“43Starting urgent proceeding with the court’s leave
- (1)The court, on application by a claimant, may give leave to the claimant to start a proceeding in the court for damages based on a liability for personal injury despite non-compliance with this part if the court is satisfied there is an urgent need to start the proceeding.
- (2)The order giving leave to start the proceeding may be made on conditions the court considers necessary or appropriate having regard to the particular circumstances of the case.
- (3)However, if leave is given, the proceeding started by leave is stayed until the claimant complies with this part or the proceeding is discontinued or otherwise ends.
- (4)Despite subsection (3), the proceeding is not stayed if -
(a)the court is satisfied that -
- (i)the claimant is suffering from a terminal condition; and
- (ii)the trial of the proceeding should be expedited; and
- (b)the court orders the proceeding be given priority in the allocation of a trial date and certifies it for speedy trial.
- (5)If, under subsection (4), the proceeding is not stayed, the following provisions do not apply in relation to the personal injury -
- (a)this part, other than this section;
- (b)sections 48, 56 and 59;
- (c)chapter 4.
…
59Alteration of period of limitation
- (1)If a complying part 1 notice of claim is given before the end of the period of limitation applying to the claim, the claimant may start a proceeding in a court based on the claim even though the period of limitation has ended.
- (2)However, the proceeding may be started after the end of the period of limitation only if it is started within -
- (a)6 months after the complying part 1 notice is given or leave to start the proceeding is granted; or
- (b)a longer period allowed by the court.
- (3)Also, if a proceeding is started under subsection (2) without the claimant having complied with part 1, the proceeding is stayed until the claimant complies with the part or the proceeding otherwise ends.
- (4)If a period of limitation is extended under the Limitation of Actions Act 1974, part 3, this section applies to the period of limitation as extended under that part.”
- [21]The balance of the applications concern the operation and application of sections 43 and 59 of PIPA. Section 43 provides provision grants power to permit the commencement of an action notwithstanding non-compliance with PIPA. The discretion I apprehend is not to be exercised if an application under section 31 has no prospects: see Davidson v State of Queensland (2006) 169 CLR 69. I am of the view that this is the situation which obtains in the present applications.
- [22]Furthermore, should the section 31 application be dismissed, consequently section 59 can have no application. This is of relevance where a complying Notice of Claim has been given within the limitation period, such a Notice of Claim has not been given within the contemplated period, and should the section 31 application fail then notice has not been given within any extended period.
Conclusion
- [23]For the reasons which I have given above the applications are dismissed.
Costs
- [24]I will hear submissions as to costs.