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- Unreported Judgment
Glasson v Toll Holdings Limited QDC 204
DISTRICT COURT OF QUEENSLAND
Glasson v Toll Holdings Limited  QDC 204
TOLL HOLDINGS LIMITED ABN 25 006 592 089
District Court at Brisbane
6 August 2015 ex tempore
6 August 2015
WORKERS’ COMPENSATION – NOTICE OF CLAIM – where the applicant suffered personal injuries in the course of employment with the respondent – where the applicant sought an extension of the limitation period for commencing a personal injury action against the respondent – where the procedure for extending the limitation period required the applicant to serve on the respondent a notice of claim complying with section 275 of the Workers’ Compensation Act 2003 (Qld) – where the applicant did not include copies of tax returns from a number of years in his notice of claim – whether the notice of claim given by the applicant to the respondent complied with section 275(8) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld)
DECLARATORY DECREES, JUDGMENTS AND ORDERS – DISTRICT COURT – JURISDICTION – whether the District Court of Queensland has jurisdiction to make the declaration sought in the application pursuant to section 68(1)(b)(xiii) of the District Court of Queensland Act 1967 (Qld)
Civil Proceedings Act 2011 (Qld) s 28
District Court of Queensland Act 1967 (Qld) s 68(1)(b)(xiii), s 72
WorkCover Queensland Act 1996 (Qld) s 280 (repealed)
Workers’ Compensation and Rehabilitation Act 2003 (Qld) pt 5 of ch 5; sch 6; ss 275, 278, 287, 297
Brew v Followmont Transport Pty Ltd  2 Qd R 482 followed
Handover v Consolidated Meat Group Pty Ltd  QSC 41 followed
Jamieson v Council of the City of Gold Coast  QDC 468 not followed
Mr A Munt for the applicant
Mr K Holyoak for the respondent
Lime Lawyers for the applicant
BT Lawyers for the respondent
- HIS HONOUR: This is an application for an order that in relation to an injury sustained by the applicant in the course of his employment with the respondent, on or about 24 August 2011, a declaration be made that on the 22nd of August 2014 the applicant gave to the respondent a notice of claim, which complied with the requirements of section 275 Workers’ Compensation and Rehabilitation Act 2003.
- The applicant suffered personal injuries in the course of his employment with the respondent on 24 August 2011. The limitation period expired at 5 pm on 25 August 2014. In order to extend the limitation period it was necessary for the applicant to serve upon the respondent a notice of claim complying with the requirements of section 275 of the Workers’ Compensation and Rehabilitation Act 2003, the Act, before the expiration of the limitation period.
- A notice of claim was served on the respondent on 22 August 2014. The applicant asserts that the notice of claim complied with the requirements of section 275 of the Act, while the respondent alleges it did not.
- On the hearing of this application the respondent submitted that I did not have jurisdiction to determine the application. The applicant does not rely on section 297 of the Act, which provides as follows:
Court to have made declaration about non‑compliance
- (1)Subject to section 296, [a] claimant may start the proceeding if the court, on application by the claimant dissatisfied with the insurer’s response under section 278 to a notice of claim, declares that—
- (a)notice of claim has been given under section 275; or
- (b)the claimant has taken to have remedied noncompliance with the requirements of section 275.
- Notwithstanding that a District Court is a court for the purposes of this Act, see schedule 6, the applicant is not seeking the declaration under section 297. The applicant does, though, seek the declaration under the general jurisdiction of the court.
- In that regard, the applicant, during submissions, referred me to section 68, subsection (1), subparagraph (b)(xiii) of the District Court of Queensland Act 1967, which gives the District Court jurisdiction in actions and matters:
for the determination of any question of construction arising under a deed, will, or other written instrument, and for a declaration of the rights of the persons interested whether the sum or the property in respect of which the declaration is sought does not exceed in amount or value the monetary limit.
- The respondent submits that does not give me jurisdiction in this case. The issue here being whether the notice of claim given by the applicant to the respondent was one that complied with section 275, subsection (8) of the Act.
- Although I was not referred to any statute or authority as to what the meaning of “other written instrument” means in section 68, subsection (1), paragraph (b), subsection (xiii), I am inclined to think a broad construction should be given, and that I do have jurisdiction to decide this application, based as it is, by the applicant, on the general jurisdiction of the court.
- However, if I am wrong in that respect, the parties have executed an authority consenting to jurisdiction in the circumstances. They have done so pursuant to section 72 of the District Court of Queensland Act 1967. This occurred because the applicant sought to amend the application as follows:
- That pursuant to section 287 of the Act, the respondent be ordered to respond under section 278, subsection (2), subparagraph (a) of the Act, that it is satisfied that the notice of claim was compliant when given on 22 August 2014.
- To avoid the matter being transferred to the Supreme Court, pursuant to section 28 of the Civil Proceedings Act 2011, the parties executed the consent that I have jurisdiction. I should also say authority would indicate that the court would not make the order sought by way of amendment to the application. That is, the applicant, by the proposed amendment, sought to rely on section 278 of the Act. That provides by subsection (2):
The insurer must, within 10 business days after receiving the notice, give the claimant written notice—
- (a)stating whether the insurer is satisfied that the notice of claim is a complying notice of claim
- The applicant’s submission is that he did give a notice of claim that was a complying notice of claim, notwithstanding the omission from it of copies of tax returns, group certificates, and notices of assessment for the financial years 2008 to 2009, and 2009 to 2010.
- However, as Justice Margaret Wilson ruled in Handover v Consolidated Meat Group Pty Ltd  QSC 41 at paragraph 25, the provision relied upon by the applicant for the proposed amendment to the application is not one that empowers:
the Court to order a party to re‑exercise a discretion; nor does it empower the Court to review a party’s exercise of discretion.
- Therefore, as in that case, her Honour held that the court cannot make an order compelling an insurer to agree that there is an urgent need for a claimant to commence a proceeding, or compelling it to waive compliance with section 275. As her Honour said:
A fortiori the Court cannot do so after the limitation period has expired.
- The limitation period has here expired. For those reasons, while I have come to the conclusion I have jurisdiction to make the declaration, I have borne in mind that if I am wrong in that respect, then it would seem to me, following the decision of Handover, I would not make the order sought by the proposed amendment. Therefore, both parties thankfully have saved the need for an order to transfer the matter to the Supreme Court if I were to be wrong on the issue of jurisdiction.
- However, returning to the issue of the notice, and whether it complied with section 275 of the Act, Mr Broughton’s affidavit exhibits the notice of claim, and as can be seen from the notice of claim in response to the requirement to state income by the worker, question 49, the applicant set out that he had been employed by the respondent for a number of years preceding his injury.
- With regard to his claim for out‑of‑pocket expenses, he expressly said that there were no receipts or documents to support that claim. However, his notice of claim did not, as I have said, exhibit or attach to it the tax returns, group certificates, and notices of assessment.
- Section 275, subsection (8), subparagraph (b) of the Act provides:
The notice must also be accompanied by copies of all documents supporting the claim including, but not limited to— […]
- (b)income tax returns, group certificates, and other documents for the 3 years immediately before the injury supporting the [plaintiff’s] claim for lost earnings or diminution of income-earning capacity
- That is the issue here before me today. In addition, the applicant’s claim claims past economic loss. He said the claimant has received WorkCover benefits at 85 per cent of normal weekly earnings during post‑accident absences, and claims $12,530.31, multiplied by 85 per cent, which is a sum of $14,742, in respect of past economic loss. The figure then claimed is $14,742.
- In addition, he claims for future economic loss, or loss of earning capacity, $200,000, and he states:
The claimant is a 58‑year‑old male, and as such has a further nine working years ahead of him. The claimant claims a global sum of $200,000 to account for restrictions on employment options and risk of interference with future employment, on account of his shoulder injury.
- The respondent is a self‑insurer. The applicant suffered his injury by using a cheater bar to restrain a load of zinc ingots using a lever arch dog and chain. He suffered an injury to his left shoulder. He made an application for compensation, and the respondent confirmed to its rehabilitation department that:
I do not have any concerns with this claim.
- He then underwent procedures and an operation, and his statutory claim came to an end on the 22nd of October 2012. He continued his employment with the respondent during the next three years. As I have said, the limitation period expired at 5 pm on Monday, 25 August 2014. His solicitors then sent the notice of claim, and did not include taxation returns or notices of assessments for the years 2008/2009 and 2009 to 2010.
- The submission that has been made is that as part of the factual background here the applicant had been employed by the respondent for approximately 35 years. He had no other source of income. The group certificates were disclosed, but would, in any event, have been in the possession of the respondent.
- Further, the notice of claim made it clear that the applicant had remained continuously employed by the respondent between the date of his injury and the date of the notice. It was clear there was no documents being relied on for the travel or pharmaceutical expenses. The request was made by the solicitors that sent the notice of claim, asking for confirmation that the notice of claim was compliant, or waiving any non‑compliance.
- The notice of claim was served on the respondent, as I said, on 22 August 2014. The limitation period expired without response having been received from the respondent. However, on 2 September 2014 the respondent sent a letter to the applicant’s solicitors, alleging the notice of claim was non‑compliant. The complaint was the lack of the taxation information I have mentioned, and the invoices, etcetera, for the out‑of‑pocket expenses.
- The applicant changed solicitors. On 5th September 2014 he was given an authority by his solicitors so they could get the relevant documentation from the Australian Tax Office. The respondent responded to a letter from his solicitors, dated 4 September 2014, granting an extension of time until 16 October 2014 to provide the missing tax returns and assessments.
- Then by letter dated 19 September 2014 the applicant’s solicitors provided the respondent copies of the missing tax returns and assessments. However, the respondent wrote to the applicant’s solicitors on 8 October 2014, stating that the limitation period had expired; that there had been no waiver of compliance before the limitation period expired, therefore the respondent said the claim was statute barred.
- The submission made initially was that his Honour Judge McGill in Jamieson v Council of City of Gold Coast, had decided in a case similar to here, no tax returns or group certificates were provided, and no other documentation provided to support out‑of‑pocket expenses, that section 280, subsection (8), should be construed as if after the words “all documents”, the words “the claimant has” were implied. However, his Honour Judge McGill’s decision has been overruled by the Court of Appeal’s decision in Brew v Followmont Transport Pty Ltd  2 Qd R 482.
- There at paragraph 28 Justice of Appeal Williams, with whom the other Judges agreed, at paragraph 28, said that his Honour Judge McGill’s decision, to the extent that it suggested that a claimant is only under an obligation pursuant to section 280 to see that documents in his possession at the time the notice is given accompany the notice, it should not be followed. Justice of Appeal Williams said:
Documents referred to in s 280(8) must accompany the notice, otherwise it is non‑complying; but, of course, WorkCover may waive non‑compliance and should do so where a satisfactory explanation for the non‑production is given.
- The applicant submits that earlier in Justice of Appeal Williams’ judgment in Brew, it is important to note that his Honour said:
It is made clear by s 280(8)(b) that to be complying the notice in fact given must be accompanied by group certificates for the three years immediately before the injury supporting the claim for lost earnings.
- What the applicant emphasises here is that his Honour said “supporting the claim”. The words “supporting the claim” are also to be found in subsection (8), and in paragraph (b) to subsection (8) of section 275. Therefore, the applicant submits that what was required in the notice was documents supporting the claim. Further, the applicant provided documents and there was no need for the applicant to provide the taxation information that I have referred to generally, because that was not required to support the claim.
- Reference is made to the claim for out‑of‑pocket expenses. Clearly the document here in that respect made it clear that no such documents existed. I accept the submission that the Act does not require the applicant to provide copies of documents which do not exist. However, I do not agree that the same consideration applies to tax returns and notices of assessment which exist, but have not been obtained.
- I do not accept they are irrelevant to a determination by the respondent of the claim. Further, I do not accept that because the applicant may be a long‑standing employee of the respondent, it follows that as the respondent may well know everything about him, there is no obligation on the applicant to obtain the taxation information.
- Taxation information, in my opinion, would support the claims being made in this case for past lost earnings and future lost earnings. I appreciate that the Act says that the purpose of part 5 of the Act is to facilitate the just and expeditious resolution of the real issues in a claim for damages, at a minimum of expense, and that the parties have an obligation to avoid delay, expense, and technicality, and to proceed in an expeditious way. However, as a matter of fact, I come to the view the documents that were not supplied were documents that would support the claim for lost earnings or diminution of income‑earning capacity.
- While the applicant may have been claiming only that money that he had received while on compensation, nevertheless it has relevance to past loss, but the documents certainly have relevance to future loss, to give a picture of the applicant. And while it may be the fact that he was only ever an employee, it might have been the fact that in the documents he may have disclosed other sources of income, which would have been relevant to the respondent’s assessment of the claim.
- But even his actual income would have been relevant to the assessment of the claim, in any event, where these actual sources of income would have been relevant to the assessment of the claim. Therefore, despite the submissions of the applicant, I come to the view that these documents are documents that support the claim.
- The long and the short of it is that the applicant did not make an application before the limitation period expired to commence proceedings, subject to conditions, which would have included the obtaining of the relevant taxation information in due course.
- I do not accept that the documents were, at the time the notice of claim was delivered, irrelevant. On the contrary, I find that they were, as I said, documents that supported the claim. Therefore, I dismiss the application. I’ll hear the parties on the question of costs. So the one order I make is application dismissed.
- HIS HONOUR: Yes. In this matter I’ve come to the view that costs should follow the event. In that respect, I will order the applicant to pay the respondent’s costs of the application. However, I come to the view that there was an argument here that was reasonable to put to the court, notwithstanding it has been rejected. That does not make it unreasonable or untenable. Certainly at one stage the authority of Jamieson was relied upon. However, it became clear that that had been overruled by Brew, as to its effectiveness. But as I have said, I don’t see the applicant, nor his solicitors, as acting unreasonably or making an unreasonable application to the court, and I think it was reasonable for the applicant to test an argument which was open.
- I don’t accept that this was one of those cases where it could be said that the applicant’s acted outrageously or unreasonably, nor the solicitors. Therefore the order I make is that the applicant pay the respondent’s costs of the application, to be assessed on the standard basis.
- MR HOLYOAK: Thank you, your Honour.
- HIS HONOUR: Yes, thank you.
- MR MUNT: Your Honour – I’m sorry, your Honour, might I ask your Honour to consider a further order in respect of costs, that the enforcement of the costs order be deferred by – or delayed by 12 months?
- HIS HONOUR: No, I don’t think we’re in the business of extending credit, Mr Munt. I’m sorry for the circumstances, in the sense that, you know, I – as I’ve said, there was merit in your argument about – you know, he’d worked for them for 35 years, but I’ve just come to the view that – against the argument. I’m not the first judge who might get it wrong, and you may be vindicated in the Court of Appeal, or you may be vindicated in the High Court.
- So – I was told a story the other day about a Supreme Court justice – I don’t have the facts right, I’m sure – but he made some remark to a barrister who was very expert in the drink‑driving legislation, and said, you know, you come up with all these points and they’ve got no substance to them and I dismiss your appeal, and he took it to the High Court and they agreed with the barrister. But, I mean, that’s the barrister’s story.
- MR MUNT: Your Honour, I had to ask, and it would have been remiss of me if I hadn’t.
- HIS HONOUR: No. All right.
- MR MUNT: Thank you, your Honour.
- HIS HONOUR: Well, thank you, Mr Bailiff. Adjourn the court.
- Published Case Name:
Glasson v Toll Holdings Limited
- Shortened Case Name:
Glasson v Toll Holdings Limited
 QDC 204
06 Aug 2015