Macbeth v Woolworths Queensland Pty Limited
[2006] QSC 277
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- Unreported Judgment
- Macbeth v Woolworths Queensland Pty Limited[2006] QSC 277
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Macbeth v Woolworths Queensland Pty Limited[2006] QSC 277
Macbeth v Woolworths Queensland Pty Limited[2006] QSC 277
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Trial Division | |
PROCEEDING: | Application |
ORIGINATING COURT: | |
DELIVERED ON: | 28th September 2006 |
DELIVERED AT: | Townsville |
HEARING DATE: | 25th September 2006 |
JUDGE: | Cullinane J |
ORDER: | Order the parties attend at and participate in a compulsory conference pursuant to Section 289 of the Workers Compensation and Rehabilitation Act 2003 at a time and place to be agreed by the parties within 21 days and failing such agreement, to be fixed by the Court. Order the Respondent to pay the Applicant’s costs of and incidental to the application to be taxed. |
CATCHWORDS: | PERSONAL DAMAGES - Where Applicant wishes to pursue claim for injury sustained in a single incident and is in a position to hold compulsory conference – Where other notices of Claim in respect of injury to same part of body not being actively pursued – Whether Court should refuse to order compulsory conference. Workers Compensation and Rehabilitation Act 2003 Anagnostou v Woolworths & WorkCover Queensland (2000) QSC 160 |
COUNSEL: | Mr D. Thornburgh for the Applicant Mr M. Drew for the Respondent |
SOLICITORS: | Shine Lawyers for the Applicant Boulton, Cleary & Kern for the Respondent |
[1] The Applicant seeks an order that the Court fix pursuant to s 289(6)(a)(i) of the Workers' Compensation and Rehabilitation Act 2003 a date for a compulsory conference in accordance with Division 1 of Part 6 of that Act or alternatively dispense with the requirement to hold such a conference.
[2] The Applicant alleges that she sustained an injury to her right shoulder as a result of an incident which occurred on 9 December 2003 in the course of her employment with the Respondent.
[3] A Notice pursuant to the Act was forwarded to the Respondent, a self-insurer, on or about 21 June 2005 and the Respondent by letter of 7 October 2005 acknowledged that the Notice was compliant.
[4] Subsequently on or about 7 April 2006, the Respondent by its solicitors provided the Applicant's solicitors with a Notice under the provisions of s 281 of the Act.
[5] Thereafter the solicitors for the Applicant wrote to the solicitors for the Respondent seeking to have a date fixed on which to conduct a compulsory conference pursuant to s 289.
[6] The respondent has refused to do so and I will turn to the reasons advanced shortly.
[7] The matters outlined above are not in dispute and it is plain that they represent an orthodox progress of a claim of this kind which would in the ordinary course of events result in the holding of a compulsory conference which the Act mandates.
[8] The holding of such a conference achieves an important aim in the legislative scheme for which the Act provides. The Act requires the parties to at an early stage make full disclosure to each other and explore the question of a compromise of the Applicant's claim. A duty to co-operate in the steps necessary to achieve these ends is imposed on the parties.
[9] Section 289(6) provides as follows:-
"On application by a party, the court –
(a)may –
(i)fix the time and place for the compulsory conference; or
(ii)dispense with the compulsory conference for good reason;
and
(b)may make any other orders the court considers appropriate.”
[10] It is accepted as would it seems to me be obvious from the terms of this subsection that the Court has a discretion upon such an application whether to make the order sought.
[11] Here the Respondent contends that that discretion ought not to be exercised in favour of the Applicant.
[12] The sticking point has been a number of other Notices of Claim given by the Applicant to the Respondent under the above Act and its predecessor.
[13] Each of these relate to an injury to the same part of the body as does the Notice of Claim on 21 June 2005.
[14] These earlier claims are dealt with at some length in the Affidavit material before the Court.
[15] One relates to what is described as an over period of time claim from 3 March 1997 to 30 June 2001. Notice of this was given on 24 January 2006 and as will be apparent the cause of action would now be out of time. The Respondent has not accepted that the Applicant has suffered an injury as a result of the matters raised in the Notice of Claim and this prevents the Applicant from proceeding any further unless she pursues an Appeal in respect of the refusal to grant a certificate.
[16] At the same time a Notice of Claim had been delivered in respect of an over period of time injury from 1 July 2001 to 30 June 2003.
[17] This also is statute barred.
[18] The Respondent replied setting out the certain conditions which it required the Applicant to comply with. One of these was a requirement that an extension of time under the Limitation of Actions Act be obtained. No steps have been taken in this regard and the claim cannot be progressed until some such steps are taken or an Appeal is lodged against the Respondent's decision.
[19] When the claim, the subject of these proceedings was made, the parties exchanged medical reports and in the report of Dr Milroy provided by the Respondent there was raised, for what the solicitor for the Applicant says was the first time, a suggestion that the claimant had sustained a personal injury over a period of her working life with the Respondent rather than in the single event relied upon by the Applicant on 9 December 2003.
[20] This is contrary to the medical evidence which the Applicant holds.
[21] According to the Applicant's solicitor it has always been her intention to advance the claim of a single event occurring on 9 December 2003 causing her injury.
[22] The Respondent upon receipt of an over period of time claim which extends to 9 December 2003, informed the solicitors for the Applicant that it was not satisfied that the Notice of Claim was compliant. The s 281 response is not due until 26 January 2007. The Applicant’s solicitor deposed that he had given the notice as a precaution because of the contents of Dr Milroy’s report.
[23] Before me the Applicant made it clear that she wishes to pursue the claim in respect of the incident on 9 December 2003 and is now in a position to do so having obtained the s 281 response from the Respondent to proceed to a compulsory conference.
[24] No steps have been taken in relation to the other claims for some time and there are in some or all of these obstacles or difficulties of one kind or another which would have to be overcome for these to proceed.
[25] The Respondent on the other hand takes the view that no compulsory conference should be held in this matter unless the other matters are brought to a stage where compulsory conferences can be held in those or they are disposed of by the Applicant's withdrawal of them. It is said that because injury to the same part of her body is alleged in each, they should progress together.
[26] The Applicant is not disposed to take the step of abandoning those claims, although as I have said, the Applicant makes it clear that it is the claim of 9 December 2003 which she wishes to pursue.
[27] No authority was cited by the Respondent in support of the attitude which it has taken.
[28] The situation is to be contrasted with that in Anagnostou v Woolworths & WorkCover Queensland (2000) QSC 160.
[29] That was a case in which the Applicant had given a Notice of Claim in respect of an incident occurring on a particular day and alleged that he had sustained injury to his lumbar spine.
[30] Subsequently after there had been compliance with the requirements of the Act by the Respondent the Applicant by her solicitor gave a notice to the Respondent of a psychological injury said to have been sustained in the same incident but not included in the original Notice of Claim.
[31] It is not surprising that in those circumstances the Court was not prepared to order the holding of a s 293 conference concluding that it would be entirely inappropriate to do so prior to the claim for psychological injury being assessed.
[32] Whatever might be said about the desirability of having all claims said to arise out of the Applicant's work with the Respondent concerning an injury to her shoulder being dealt with together, I am not persuaded there is any justification for refusing to order that the compulsory conference take place.
[33] On the respondent's approach, the Applicant who appears to have very little interest in doing so would be required to proceed with all of the other claims to which I have referred and to bring them to the point where compulsory conferences could be held or to abandon them.
[34] Apart from the fact that there is the possibility of more than one piece of litigation which would concern an injury to the same part of the Applicant's body, it does not seem to me that any prejudice would be suffered by the Respondent in taking the course which the Applicant seeks to have taken. On the other hand quite unnecessary expense and delay might be involved if the Applicant were to be forced to take action in relation to the other Notices of Claim, something she is reluctant to do even if it is still open to her to do so. The alternative is to abandon these claims, something she is equally reluctant to do in case it is necessary – if it remains possible – to fall back as a last resort on one or more of these.
[35] The intention of the legislature is that the parties should proceed once the preliminary requirements have been satisfied with the holding of a compulsory conference (see s 289(3)) I do not think that the Respondent in this case has advanced sufficient justification for refusing to order the holding of the compulsory conference which the Act requires to be held.
[36] It should also be borne in mind that Section 287 confers a wide power upon a Court to compel a party to comply with the requirements of Part 5 of Chapter 5 relating to pre-court procedures. There is nothing to suggest the Respondent has sought to invoke this power.
[37] I order that the parties attend at and participate in a compulsory conference pursuant to s 289 of the Workers Compensation and Rehabilitation Act 2003 at a time and place to be agreed by the parties within 21 days and failing such agreement to be fixed by the Court.
[38] I order the Respondent to pay the Applicant's costs of and incidental to this application to be taxed.
[39] I give parties liberty to apply.