Narayan v S-Pak Pty Ltd
[2002] QSC 373
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- Unreported Judgment
- Narayan v S-Pak Pty Ltd[2002] QSC 373
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Narayan v S-Pak Pty Ltd[2002] QSC 373
Reported at [2003] 2 Qd R 387
Narayan v S-Pak Pty Ltd[2002] QSC 373
Reported at [2003] 2 Qd R 387
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Trial Division | |
PROCEEDING: | Application for extension of time |
ORIGINATING COURT: | |
DELIVERED ON: | 18 November 2002 |
DELIVERED AT: | Brisbane |
HEARING DATE: | Application on the papers |
JUDGE: | de Jersey CJ |
ORDERS: |
|
CATCHWORDS: | LIMITATION OF ACTIONS – CONTRACTS, TORTS AND PERSONAL ACTIONS – PERSONAL INJURY CASES – where proceedings under WorkCover Queensland Act commenced and where compulsory conference held – where plaintiff then had 60 days to issue proceedings – where the plaintiff was late in issuing proceedings – whether the Court can extend the time allowed for compliance WorkCover Queensland Act 1996 (Qld) s 185, s 285, s 291, s 293, s 306, s 308 |
COUNSEL: | JA Griffin QC for the plaintiff R Douglas SC for the defendant |
SOLICITORS: | Stephens & Tozer Solicitors for the plaintiff Bradley & Co for the defendant |
[1] On 30 November 2000, the plaintiff issued proceedings for damages for negligence in respect of personal injuries allegedly sustained in the course of his employment by the defendant. He allegedly injured his back lifting heavy weights regularly over a period from 1988 to 23 July 1997.
[2] On 14 December 2001, the plaintiff filed an application for various orders to secure the regularity of the proceedings in the context of the requirements of the WorkCover Queensland Act 1996. By cross-application filed in February 2002, the defendant sought summary judgment.
[3] On the face of the claim, it was filed beyond the relevant three year limitation period. But Mr Griffin QC, for the plaintiff, confirms that the plaintiff sues only in relation to the injuries referred to in his notice of claim delivered on 24 August 1999. By letter dated 27 March 2000, the solicitors for WorkCover Queensland confirmed that that notice of claim was to be regarded as compliant as at 10 January 2000. WorkCover was obliged to give its written notice in response under s 185, within six months of 10 January 2000, that is by 10 July 2000. That notice, dated 11 July 2000, was received by the plaintiff’s solicitors on 12 July 2000. The notice should therefore be regarded as having being given two days late.
[4] Under s 293, a claimant must organise and hold a “compulsory conference” within three months after WorkCover gives the s 285 notice. On 28 September 2000, the parties conducted what purported to be a s 293 conference. That was within three months of the giving of the late s 285 notice. But the lateness of that notice does not mean that the conference held in September should not be regarded as what it plainly was – the s 293 compulsory conference.
[5] Under s 308 of the WorkCover Queensland Act, the plaintiff was obliged to bring any proceeding within 60 days after the compulsory conference. In issuing the proceeding on 30 November 2000, the plaintiff was two or three days late. The question which arises is whether the Court can extend the time allowed for compliance.
[6] Mr Griffin relies on s 291, which provides that if a party fails to comply with a provision, the court may order it to do so, and make consequential or ancillary orders. As Mr Douglas SC points out for WorkCover, the s 308 time limit having expired, no “compliance” could be secured by a court order under s 291. I do not consider that s 291 can be given the expansive construction for which Mr Griffin contends. The time limit under s 308(2) appears not susceptible of extension. That relates to the time within which a proceeding “must be brought”. By contrast, s 306(3) provides for the extension of a prescribed period, but in that case the period in which “the legal process that starts the proceedings must be served”.
[7] This is a limitation period. Where the legislature intends that a limitation period may be extended, it tends to accord the discretion directly. That has not been done. Further, the power under s 291 to ensure compliance is not apt to facilitate extension of a limitation period for a commencement of proceedings, simply because there is no obligation to commence proceedings: the relevant requirement is that if proceedings are to be commenced, that occur within the prescribed period.
[8] My views, in summary, are these:
1. A compulsory conference was held on 28 September 2000. It bore all the hallmarks of the statutory conference, and the parties regarded it as such.
2. That did not cease to be a “compulsory conference” because the s 285 notice preceding it was given two days late. The lateness in the giving of that notice had no residual consequence. It did not invalidate the notice. Again, one notes that the parties – the notice having been given – proceeded to convene the compulsory conference next required.
3. The statute does not give the Court the power to extend the period ordained by s 308(2) within which, in prescriptive terms, a “proceeding must be brought”. Because of the plaintiff’s failure to meet that intractable time limit, its proceeding must fail.
[9] The plaintiff’s application is dismissed with costs, including reserved costs, to be assessed. On the defendant’s cross-application, order that there be judgment in the proceeding for the defendant against the plaintiff, with costs, including reserved costs, to be assessed.