Hughes v Impulse Entertainment Pty Ltd & Workcover Queensland
[2013] QDC 21
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- Hughes v Impulse Entertainment Pty Ltd & Workcover Queensland[2013] QDC 21
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Hughes v Impulse Entertainment Pty Ltd & Workcover Queensland[2013] QDC 21
Hughes v Impulse Entertainment Pty Ltd & Workcover Queensland[2013] QDC 21
[2013] QDC 21
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
No 4706 of 2012
No 363 of 2012
MICHAEL HUGHES | Applicant |
and | |
IMPULSE ENTERTAINMENT PTY LTD and WORKCOVER QUEENSLAND | Respondent Respondent |
BRISBANE
DATE 31/01/2013
ORDER
CATCHWORDS
Uniform Civil Procedure Rules R 171
Workers’ Compensation and Rehabilitation Act 2003 - s 302(2)
Personal injury claim against employer- proceeding commenced 61 days after compulsory conference - Workcover sought striking out on the basis it was a day late” - claim not statute barred under Limitations of Actions Act 1974 which was held to prevail - s 302 applied a limitation period only if the claim/proceeding was otherwise out of time- Whether it was open to the plaintiff to deliver a second notice of claim in respect of his injury to support a court proceeding
HIS HONOUR: In my opinion what Mr Douglas SC submitted to the Court in his address in reply is correct and determines this matter. It simply repeats part of his and Mr Malcomson’s written outline.
The court is required to construe section 302 of the Workers' Compensation and Rehabilitation Act 2003. The section provides as follows -
302 Alteration of period of limitation
(1)A claimant may bring a proceeding for damages for personal injury after the end of the period of limitation allowed for bringing a proceeding for damages for personal injury under the Limitation of Actions Act 1974 only if—
(a)before the end of the period of limitation—
(i)the claimant gives, or is taken to have given, a complying notice of claim; or
(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
(iii)a court makes a declaration under section 297; or
(iv)a court gives leave under section 298; and
(b)the claimant complies with section 295.
(2)However, the proceeding must be brought within 60 days after a compulsory conference for the claim is held.
The plaintiff, who commenced a proceeding for damages for personal injury against his employer and WorkCover on the 31st of January 2012, has fallen foul of subsection (2) in the defendants submission because his proceeding was commenced 61 days after the holding of the relevant compulsory conference which occurred in the course of the parties going through the pre-litigation procedures mandated by the Act. The conference failed to resolve the claim; mandatory find offers were exchanged at the end, neither being accepted.
The Chief Justice's decision in Narayan v. S-Pak Pty Ltd [2002] QSC 373 establishes that a plaintiff who falls foul of section 302(2), which happened there by a couple of days only, is unable to pursue his claim, the Court having no jurisdiction in any circumstances to grant an indulgence from the point of view of commencing or bringing the proceeding. The provision “is a limitation period”: paragraph [7].
What is "the proceeding"? The answer as a matter of statutory construction has to be, by reference to subsection (1), that it is "a proceeding for damages for personal injury [brought] after the end of the period of limitation allowed for bringing a proceeding for damages for personal injury under the Limitation of Actions Act 1974".
The case for Mr Hughes is that, although his claim is in part within that description, it's not wholly within that description in that specific incidents and perhaps general features of his employment occuring after the 31st of January 2009 are available to found a claim complying with the strictures of the Limitation of Actions Act.
It may be pertinent to record Mr Douglas' concession that if the proceeding goes ahead and the defendants wish to invoke the limitations legislation then a limitation period will stand in the way of parts of the claim arising before 31 January 2009.
Mr Hughes had a sales position with the employer which involved a good deal of driving and it is his case that injury occurred to him because his job description involved the driving that it did.
The defendants’ case which is relied on also to support their cross-application for striking out of the claim under Rule171 is that on the basis of Narayan and similar authorities the claim cannot be brought; or “must fail” (paragraph [8]). That case is that Mr Hughes finds himself in an identical position to Narayan: he became committed to the processes to be gone through under the Workers Compensation and Rehabilitation Act which have worked out in his case to involve the imposition of a new limitation period under section 302(2).
Mr Hughes' argument, as I understand it, is that in respect of the post-January 2009 aspects his claim faces no difficulties under the Limitation of Actions Act. He, therefore, doesn't need the assistance of section 302 to extend the limitation period, but must accept the restrictions which Mr Douglas' concession outlined above implies. In Narayan, as in a number of other authorities the parties have drawn to my attention, the limitation period had expired.
Mr O'Sullivan, for WorkCover, presents a case that the Workers Compensation and Rehabilitation Act may work to extend the Limitation of Actions Act period in some cases and, indeed, in the usual case, but it's equally capable of working to subject a plaintiff to a shorter limitation period than the Limitation of Actions Act allows.
I think that this cannot be the case, having regard to the approach to interference with well established common law or like rights acknowledged by the High Court in Berowra Holdings Pty Ltd v Gordon [2006] 225 CLR 364 at paragraph 23. Our Court of Appeal has taken that approach in Cousins v Mount Isa Mines Limited [2006] 2 Qd R 343 at [33]. A high value is put on a claimant having the opportunity to litigate his claim. Section 236 of the Workers Compensation and Rehabilitation Act emphasises that the Limitation of Actions Act is to prevail and not be cut down by it; the only restriction is that by subsection 236(3) the section is subject to section 302.
In my view, the way the Act should be construed is that MrHughes, who has, it seems, a claim that is not statute barred under the Limitation of Actions Act does not find his position undercut by the failure of his legal representatives to bring a proceeding within the time referred to in section 302 subsection (2). It may be noted that the 60 day period running from the date of the compulsory conference is recognised elsewhere in the Act, in particular, in section 300 subsection (3) which provides:
300 Carriage of proceedings
(3)If a claim has not been settled at a compulsory conference, then despite any rule of court, the legal process that starts the proceeding must be served on the employer—
(a)within 60 days after the day the conference was held; or
(b)within the further period that the court orders on the claimant’s application.
Mr Hughes’ application is for an indulgence under paragraph (b) because his claim is yet to be served, although the defendants have been provided with an unsealed copy of it and the proposed statement of claim. Mr O'Sullivan raises no issue about that; he has fairly conceded that there are no issues of prejudice his clients could point to from the standpoint of the court considering whether or not to exercise its discretion to allow further time for service. That obviously enough is the situation, the parties having enjoyed their opportunities and, indeed, carried out their responsibilities to consider the claim in detail over the years, and certainly since the delivery of the first notice of claim under the Act on 12 July 2011. No suggestion was made that section 295 invalidated the proceeding. The injuries are alleged to have occurred over the period from May 2007 to October 2009.
While Mr O'Sullivan may be correct that section 300 (3)(a) contains an assumption that the proceeding would have commenced within the 60 day limit for service, which is susceptible of extension; I don't find anything in that provision or in section 302 or in the combination of them which would indicate that Mr Hughes' proceeding is an invalid one in any sense. It would have been a simple matter for the legislature to have said as much.
Another interesting issue canvassed by counsel in their helpful submissions has been whether it's open to a claimant to provide more than one notice of claim. Mr Hughes’ legal representative’s response to WorkCover's very prompt advice that they regarded the proceeding as fatally flawed was to serve a new notice of claim in identical terms to the original one.
There is nothing in the Workers Compensation and Rehabilitation Act which stands in the way of multiple notices of claim being given, inconvenient or confusing as it might be. Mr Douglas may have hit on a solution if real difficulties arise as a result of a claimant starting the process off and not promptly or sufficiently promptly starting his proceeding. Section 287 may be invoked by any party embarrassed by not knowing whether a claimaint intends to pursue any of multiple notices of claim to proceeding stage.
It's unnecessary to express any view on whether there's anything in the Acts Interpretation Act - in section 23(1), as I suggested, which may depend on whether “function”, formerly “duty”, extends to the activity of bringing a notice of claim, or as Mr Douglas suggested was more likely, section 38(4)- which would constitute a statutory justification for Mr Hughes starting again. In my view, it was not necessary for him to do that. I have taken the opportunity to do a little research touching this aspect.
The paucity of authority or learned writing about s 23(1) noted in Re Country Stores Pty Ltd [1988] 2 Qd R 149 still pertains today. Pfeiffer v Stevens (2001) 209 CLR 57 provides no answer to whether “function” extends to things done not in some official or public capacity. There is even less regarding s 38(4), except as to its other (probably primary) role in establishing a requirements to act of all convenient speed where no time limit is stipulated for doing something (a condition of availability of the section that may not be found here). Courts in this State, also South Australia and Western Australia, may decide that some step such as commencing an appeal in time has (Tichy v R [1982]6 A Crim R 119) or has not (Crowley v McKay (1991) 21 Qld Lawyer Reports 57; Exp Austco Pty Ltd [1985] 2 Qd R 1, been taken in time.
In my opinion, such provisions are probably unnecessary. There is nothing in the legislation (as easily could have been included) to preclude further s 275 notices of claim being given by a claimaint. In relation to court proceedings or orders sought, rules of court or laws may stipulate that only one application can be made. As the reasons given in DA Christie Pty Ltd v Baker [1996] 2 VR 58 2 show, applicants are typically free to try again unless doing so is adjudged an abuse of process or there is an issue estoppel. Byrne J assisted the parties where “things were out of hand” & threatened to be, where there were double applications and orders for examination of a company director in Re Il Palazzo (Management) Investments Pty Ltd (in liq) [2001] QSC 375, BC200106236. There it was wrongly apprehended that the first order may have been deficient A second bite at the cherry may be available if circumstances change, as here they did, if, contrary to my view, the proceeding based on the original notice failed.
Although the possibility has been canvassed of the court, at this stage, ordering a partial striking out of the pre-February 2009 aspects of the claim, it seems to me that this is not practical or convenient course which I say without seeking to cast any doubt on the defendants' ability to gain the fullest benefit open to them from the Limitation of Actions Act.
I'm grateful to Mr O'Sullivan for his reference to Phipps -v- Australian Leisure and Hospitality Group Limited [2007] QCA 130 which indicates that even if, which I don't think is the case here, there may be serious deficiencies in a plaintiff's procedure, the discretion to strike out under Rule 171 will not necessarily be exercised.
...
HIS HONOUR: I'll make that order in terms of with respect to paragraph 1 of the originating application of Michael Hughes.
Workcover’s application is dimissed.
There is no order as to costs.
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