Hamey v Mac Services Group Pty Ltd
[2014] QDC 137
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- Unreported Judgment
- Hamey v Mac Services Group Pty Ltd[2014] QDC 137
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Hamey v Mac Services Group Pty Ltd[2014] QDC 137
Hamey v Mac Services Group Pty Ltd[2014] QDC 137
DISTRICT COURT OF QUEENSLAND
CITATION: | Hamey v Mac Services Group Pty Ltd & Anor [2014] QDC 137 |
PARTIES: | JENNIFER ALICE HAMEY v MAC SERVICES GROUP PTY LTD ACN 003657510 and WORKCOVER QUEENSLAND |
FILE NO/S: | OA 1677/2014 |
DIVISION: | |
PROCEEDING: | Originating application |
ORIGINATING COURT: | District Court Brisbane |
DELIVERED ON: | 21 May 2014 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 21 May 2014 |
JUDGE: | McGill DCJ |
ORDER: | Leave to commence a proceeding subject to conditions as per draft. No order as to costs. |
CATCHWORDS: | EMPLOYMENT LAW – Injury of employee – pre-litigation procedures – leave to commence proceeding because of urgent need – condition as to application for extension of limitation period imposed. Workers’ Compensation and Rehabilitation Act 2003 s 298 Brook v Boonah Shire Council [2007] QSC 44 – considered. Kovacic v Local Government WorkCare [2013] QSC 256 – followed. |
COUNSEL: | M Horvath for the applicant R Morton for the respondents |
SOLICITORS: |
- [1]This is an application under the Workers’ Compensation and Rehabilitation Act 2003 s 298 which arises in circumstances where a notice of claim under s 275 was given after the expiration of the limitation period. The notice was given in a situation where the applicant alleges that she has grounds to obtain an extension of the limitation period under section 31 of the Limitation of Actions Act, although, if an extension is granted because of the material fact that she relies on, the extension would be only to a date in a few days time, and therefore the necessary urgency is present.
- [2]There is no dispute about that, and indeed, the making of an order under s 298 is not opposed. However, the respondent seeks the imposition of certain conditions, most of which are ultimately not controversial, but one particular condition which was controversial was a requirement that the applicant file an application for an extension under s 31 of the Limitation of Actions Act on or before a particular date, to be made returnable within a particular period, specifically September this year.
- [3]That condition was opposed, essentially two bases: first, that the imposition of such a condition was not justified by s 298(2) of the Act because the condition was not one which was necessary or appropriate to minimise prejudice to the insurer from the claimant’s failure to comply with the requirements of s 275. It was submitted that, insofar as the insurer had suffered prejudice because of the lack of a more timely notice of claim, that prejudice could not be remedied, and the determination of the question of whether or not to extend the limitation period – which would, if granted, deprive the insurer of an absolute defence under the Limitation of Actions Act – was not something which was relevant prejudice for the purposes of s 298(2).
- [4]The other ground on which the condition was opposed was that WorkCover has a published policy which indicates that, ordinarily, an application under s 31 will only need to be made after a compulsory conference, presumably, a compulsory conference at which the matter does not resolve. The relevant situation relied on was example 6 in the policy, which provided that a draft application and supporting affidavits were to be provided within 60 days of the agreement pursuant to which compliance was waived, but the actual application only needed to be made within 60 days of the compulsory conference, that is, after the holding of the compulsory conference.
- [5]It was submitted that in this case WorkCover had departed from that policy by insisting on the application being actually made, and presumably determined, before a compulsory conference was held. It must be said that on the face of it in this case, WorkCover has departed from that policy, though WorkCover’s position is simply that this is a policy and it is not bound by it, and that it is entitled to depart from it in a particular case if it thinks that it is appropriate to take that step.
- [6]The advantage to the applicant of having the s 31 application run after the compulsory conference is that, if the matter settles at the compulsory conference – of course, there is an expectation that at least a lot of these matters will settle at a compulsory conference – the applicant will be spared the cost of having to make the s 31 application. There is certainly a practical advantage in delaying the making of a formal s 31 application, and if copies of the material upon which that application is to be based in due course are provided to the respondent prior to the compulsory conference, the respondent will be in a position to assess the prospects of that application, and, in theory at least, can factor that calculation into its approach in negotiating at the compulsory conference.
- [7]In effect, all of these steps can be taken into account and allowed for at the compulsory conference and the matter may be resolved there. It does seem to me, however, that if the respondent is confident of its position in relation to the s 31 application, that may mean that a compulsory conference is unlikely to achieve any sort of settlement which will be attractive to an applicant.
- [8]There is another complication in relation to this particular matter. The applicant claims to have suffered, through the negligence of four different employers, four different injuries: one in 2009, two in 2012 and one alleged to have arisen over a period of time between November 2012 and March 2013. Three of those relate to the applicant’s back, and no doubt, there are going to be complicated factual and legal questions arising in relation to the extent to which the various employers were responsible for different parts of whatever problems the plaintiff now has. I suppose that if WorkCover is indirectly responsible for all of the back injuries, that is not going to matter very much, but if the first injury will remain statute-barred, then that is certainly likely to give rise to complications, and may well produce a very different approach to a compulsory conference.
- [9]Whether it is because of this additional complication, or simply because of the attitude that WorkCover has to this particular applicant’s prospects on the s 31 application, I do not know, and I do not think it matters. Unless it could be established that the applicant had changed her position in reliance on the published policy – and counsel for the applicant did not seek to advance argument on that basis – it seems to me that the respondent is not bound by its published policy and is free, in a particular case, to depart from it. It then becomes a question of whether the proposed condition is one which falls within s 298(2), and whether it is appropriate to impose that condition, essentially, in the interests of obtaining greater certainty in relation to the applicant’s claim, particularly the one which is, at the moment, statute-barred.
- [10]As to the former point, this was dealt with directly and specifically by Henry J in the decision of Kovacic v Local Government WorkCare [2013] QSC 256 on p 7, where his Honour identified the relevant prejudice which would be suffered for the purposes of the analogous provision of the WorkCover Queensland Act 1996, which was in the same terms. I consider that I should follow that decision unless persuaded that it is clearly wrong, and I am not so persuaded. His Honour then expressed the view that it is desirable and appropriate that whether a s 31 extension be granted not await the commencement of the proceedings, but instead occur the near the outset of the pre-proceeding process (p 7), and that there is an obvious disadvantage in considering settlement in circumstances where a potentially determinative limitation point remains unresolved (p 5). Whatever the practicalities of the matter are, I must say that the logic of his Honour’s position seems to me to be unassailable, and, at least in principle, the resolution of the compulsory conference should be simplified by removing this particular issue from contention prior to the conference.
- [11]I note, as his Honour did, that another judge of the Supreme Court, White J, had declined to impose a similar condition in Brook v Boonah Shire Council [2007] QSC 44. In that case, there were some issues which were raised and found against the respondent, and, as Henry J pointed out, the rejection of the condition was not an aspect of her Honour’s ruling which involved particular elaboration. It follows that there is necessarily no particular reasoning justifying rejection of such a condition in the decision in Brook which might cause me to have doubts about the correctness or appropriateness of the approach adopted in Kovacic.
- [12]In the circumstances, it seems to me that the approach in Kovacic is a reasonable and appropriate one, and that the condition is a relevant condition for the purposes of s 298(2), and accordingly, the applicant should be required to make the application so that the issue can be clarified before the pre-litigation proceedings go too much further.
(argument ensued)
- [13]In the circumstances, I make no order as to costs. What could happen down the track might have nothing to do with the matters ventilated before me today, so there is no particular reason to make the costs costs in the proceedings to be commenced. I make no order as to costs, on the basis that the applicant has achieved some practical advantage by the application, and it seems that none of the other conditions which were abandoned today were abandoned before today, so although the respondent won on the point that was argued, overall there were advantages to both parties. I make no order as to costs. I’ll put that in paragraph 7, in place of what’s in the draft. Subject to that, there’ll be an order in terms of the draft.