Kovacic v Local Government WorkCare
[2013] QSC 256
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- Unreported Judgment
- Kovacic v Local Government WorkCare[2013] QSC 256
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Kovacic v Local Government WorkCare[2013] QSC 256
Kovacic v Local Government WorkCare[2013] QSC 256
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO: | |
Trial Division | |
PROCEEDING: | Application |
ORIGINATING COURT: | |
DELIVERED ON: | 2 September 2013 (ex tempore) |
DELIVERED AT: | Cairns |
HEARING DATE: | 30 August 2013 |
JUDGE: | Henry J |
ORDERS: | 1. Upon the conditions set out in this Order, the applicant have leave pursuant to s 305 of the WorkCover Queensland Act 1996 (Qld), to commence proceedings against the respondent claiming damages for injury suffered on 14 March 2003.2. The applicant must deliver to the respondent a Notice of Claim complying in all respects with s 280 of the WorkCover Queensland Act 1996 (Qld) within 30 days of receiving his Notice of Assessment including all documents required to be delivered with the Notice of Claim under s 280 of the WorkCover Queensland Act 1996 (Qld).3. On or before 31 January 2014, the applicant must file an application, and any affidavit material he proposes to rely on in support, seeking to extend the limitation period, which application is to be returnable before the Court in Cairns on 28 February 2014.4. The applicant undergo independent medical examination by Dr R Labrom, orthopaedic surgeon, on the condition that the respondent meet the applicant’s reasonable costs of attending the examination.5. The applicant is required to deliver to the respondent within 7 days:(a) an authority directed to Centrelink authorising the release by Centrelink to the respondent all documents in its possession relating to the applicant;(b) an authority directed to Medicare authorising the release by Medicare to the respondent of all documents in its possession relating to the applicant;(c) an authority in the terms required under s 280 of the WorkCover Queensland Act 1996 (Qld) in favour of Queensland Local Government WorkCover Scheme.6. The name of the respondent is substituted with Local Government WorkCare.7. The parties have liberty to apply on two days’ notice in writing.8. The applicant pay the respondent’s costs of and incidental to the application to be assessed on the standard basis. |
CATCHWORDS: | WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – PRE-LIMINARY REQUIREMENTS – where the applicant seeks leave pursuant to s 305 of the WorkCover Queensland Act 1996 (Qld) to commence a proceeding for injuries sustained despite non-compliance with s 280 and the pre-court procedures contained in Chapter 5 – whether leave should be granted LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – GENERALLY – where the respondent contends the giving of leave should be conditioned on a preliminary determination of whether the limitation period for the action should be extended pursuant to s 31 of the Limitation of Actions Act 1974 (Qld) – whether a preliminary determination is required Limitation of Actions Act 1974 (Qld) s 31 Personal Injuries Proceedings Act 2002 (Qld) s 43 Uniform Civil Procedure Rules 1999 (Qld) rr 5, 69 WorkCover Queensland Act 1996 (Qld) ss 280, 280A, 305 (since repealed) Brook v Boonah Shire Council [2007] QSC 44 Charlton v WorkCover Queensland [2007] 2 Qd R 421 Davison v Queensland [2006] 226 CLR 234 |
COUNSEL: | L A Neil for the applicant R Morton for the respondent |
SOLICITORS: | Maurice Blackburn Lawyers on behalf of the applicant BT Lawyers on behalf of the respondent |
HIS HONOUR: The applicant seeks leave pursuant to s 305 of the WorkCover Queensland Act 1996 (Qld) (repealed) (“the Act”) to start a proceeding for injuries sustained by the applicant on 14 March 2003 despite non-compliance with s 280 and Chapter 5 of the Act. The applicant also seeks to substitute the name of the respondent to Local Government WorkCare in accordance with Uniform Civil Procedure Rule 69.
The respondent does not oppose the latter course, nor does the respondent oppose the giving of leave pursuant to s 305. Rather, it contends the giving of leave should be conditioned on there being a preliminary determination of whether the period of limitation for the action should be extended pursuant to s 31 of the Limitation of Actions Act 1974 (Qld).
Because the relevant injuries were allegedly sustained on 14 March 2003 the primary limitation period expired on 14 March 2006. The applicant asserts he received medical advice on 11 September 2012 that he ought cease work. The applicant effectively contends this was a material factor of a decisive character with the consequence under s 31 of the Limitation of Actions Act 1974 (Qld) that an extended limitation period would expire on 11 September 2013, hence the need for urgency in instituting proceedings.
Chapter 5 of the Act contains various procedures to be complied with before a potential claimant can institute proceedings. Section 280 requires the giving of notice, which includes an array of information, some of which is not yet available to the applicant. Moreover, s 280(1) provides the claimant must give notice under this section within the period of limitation for bringing a proceeding for damages under the Limitation of Actions Act 1974 (Qld). It would be difficult for the applicant to contend his notice, if given, is given within the period of limitation in the absence of a determination on a s 31 application.
Compliance with these pre-proceeding procedural requirements can be waived by WorkCover pursuant to s 280A. That has not occurred here. Failing that, s 305 allows the Court to give leave despite non-compliance with s 280. Leave should be given. Failure to give leave would shut the applicant out from an opportunity to, at least, attempt to pursue his claim. It is unnecessary for a s 31 Limitation of Actions Act application to be pursued prior to the giving of leave under s 305, see Charlton v WorkCover Queensland [2007] 2 Qd R 421 and Brook v Boonah Shire Council [2007] QSC 44.
As already mentioned, the respondent concedes it is appropriate to give the applicant leave but only conditional upon a prompt determination of the limitation point. The order sought by the respondent as a condition of leave is: “On or before 1 November 2013 the applicant must file an application, and any affidavit material he proposes to rely on in support, seeking to extend the limitation period, which application is to be returnable before the Court in Cairns on 13 December 2013”.
The respondent submits that on the present materials a s 31 application would have poor prospects of success. However, it is not to be expected that the materials filed in this application would allow a reliable inference to be drawn in respect of such prospects. Nor does s 305 or its context suggest the discretion ought be exercised having regard to whether there is a reasonably arguable case for the granting of an extension to the limitation period, see Davison v Queensland [2006] 226 CLR 234, 244 to 245. More materially, the respondent submits that if a condition of the kind it seeks is not imposed the parties will have to go through the whole of the pre-proceedings process and commencement of proceedings.
It submits the cost thereof will have been wasted if the applicant is later unsuccessful in its s 31 application. The respondent says a s 31 application will have to be made sooner or later and because it could be determinative it is better made sooner to avoid the potentially unnecessary incurring of cost. These considerations strongly favour the imposition of a condition and are consistent with the spirit of the rules, see, for example, rule 5.
The respondent also emphasises the costs of the pre-proceedings process will not otherwise be avoided, for example, by settlement because in the absence of a successful s 31 application the respondent would perceive it has an absolute defence and offer no money to settle. I attach only modest weight to that submission. Defendants’ lawyers often perceive they have an absolute defence but as more material becomes available they realise their client’s prospects are mixed and their approach to settlement can become more open-minded. I accept, though, that there is an obvious disadvantage in considering settlement in circumstances where a potentially determinative limitation point remains unresolved.
A difficulty, it is submitted, in accelerating the determination of a s 31 application to prior to the pre-proceeding process is that materials gathered and disclosed in that process would ordinarily contain information relevant to an informed consideration of whether leave should be or is likely to be given pursuant to s 31. However, not all such materials would be relevant to that determination and it ought be borne in mind information of the kind which is relevant to the determination is unlikely to be of a character rendering it presently unknown.
The applicant relies upon the observations of White J in Brook v Boonah Shire Council [2007] QSC 44. There it had been submitted a s 31 application to extend must be brought within the potentially extended period and that such an application ought precede a s 305 application. Her Honour rejected that argument observing:
“The decision of the High Court in Davison v State of Queensland [2006] HCA 21 referred to in Charlton makes plain that not only is the reference in the legislation to the limitation period and to any extended period, whether the order and, I would suggest, any application to extend is made before or after the application under s 305, or similar, is immaterial. That is, I think, clear from statements at paragraphs 17 and 19 in the principal majority judgment that the Court should not attempt to “second-guess” the prospects of the application to extend. Further, the respondent to a s 305 application will be WorkCover or its equivalent, while a defendant to proceedings to extend time will be, in most cases, the employer.
A matter which is well recognised would enliven the Court’s discretion under s 305 is the imminent expiration of a limitation period. That is, of whichever variety: the normal limitation period or extended limitation period. It is not until the matter is in the Court as a proceeding that whether there is a limitation defence will need to be established finally. Accordingly, the applicant should be given leave to commence proceedings pursuant to s 305, subject to compliance with the requirements of part 5 of the WorkCover Act. I would not impose a condition that an application be brought pursuant to the Limitation of Actions Act”.
Her Honour’s observations are generally apt to the present matter. Notably she declined to impose as a condition of giving leave that a s 31 application be brought, although that aspect of her ruling did not involve particular elaboration. On the other hand, the imposition of conditions in giving leave is precisely what the primary judge, Holmes J, had done in Davison v Queensland [2006] 226 CLR 234. The analysis of Kirby J in that matter touched helpfully upon the appropriateness of imposing such conditions as safeguards against an abuse of s 43(1) of the Personal Injuries Proceedings Act 2002 (Qld), a leave provision similar to, but by no means identical to, s 305. Like s 305(2), s 43(2) allows the imposition of conditions. His Honour relevantly observed:
“The imposition of procedural safeguards, as contemplated by s 43(2) of the Personal Injuries Act, and compliance otherwise with the provisions of the Act as contemplated by s 43(3) (with the prospect of revocation of leave if such conditions and compliance are not forthcoming), mean that abuse of the leave for which s 43(1) provides can be quickly, and effectively, dealt with.
This fact was acknowledged by Holmes J when her Honour made it clear that the leave provided was conditional on the appellants’ seeking orders for an extension of the limitation period in applications filed and served within an indicated period after the date of her Honour’s orders. The orders subsequently made by Holmes J established a clear timetable for the filing and serving of the appellants’ applications; for the return of such applications before the Court; and for the personal swearing by each of the appellants “to the issue of when… and the circumstances under which, a material fact or facts of a decisive character relating to [the] cause of action against the respondent was first within [his or her] means of knowledge. These were the kind of conditions that s 43 of the Personal Injuries Act contemplated.
In the events that occurred Holmes J’s timetable was interrupted by the appeal to the Court of Appeal. The orders were vacated when the Court of Appeal, by majority, substituted its own orders dismissing each appellant’s application under s 43. Had such orders not been made, the orders of Holmes J would have quickly brought the proceedings to a consideration of the extension of the limitation Bar. But they would have done so in the proper place and at the proper time for decisions on such questions”.
In essence, his Honour was observing that consideration of the merits of a s 31 application ought not occur as part of an application akin to s 305 but at a subsequent appropriate time. In traditional litigation that time would ordinarily have been regarded as being in the course of proceedings once they are commenced. However, the pre-proceeding processes nowadays imposed in litigation like the present are onerous and involve the conduct of significant work, much of which in traditional litigation tended only to occur after the commencement of proceedings. In the context of litigation of this kind it is appropriate that the question of whether a s 31 extension will be granted not await the commencement of proceedings, but instead occur near the outset of the pre-proceeding process.
I am fortified in arriving at that view by s 305(2) which provides:
“The order giving leave to bring the proceeding may be made on the conditions the Court considers necessary or appropriate to minimise prejudice to WorkCover from the claimant’s failure to comply with the requirements of s 280”.
Here it is apparent WorkCover would suffer prejudice from the failure to comply with the requirements of s 280 in the sense it will not otherwise have the certainty of a notice under s 280 that it is within the limitation period. It would be exposed to the significant impost of the pre-proceeding procedure, vulnerable to the prospect that it might all be wasted or be of no benefit because the intended action is out of time. It should have the benefit of the certainty which compliance with s 280 would otherwise tend to provide rather than suffer the prejudice flowing from a lack of such certainty.
For these reasons I conclude there ought be conditions pursuant to s 305(2) which will ensure a timely determination of the limitation issue.
Having regard to the present state of progress in the matter I propose to allow five months for that to occur. That is, a determination ought occur in the course of February 2014, and to that end I contemplate the filing of a s 31 application by 31 January and a hearing of it on an applications’ day on 28 February 2014. I will hear the parties further as to the form of orders to be made and as to costs.
I have made alterations to an existing draft order with a view to implementing the conclusions reached in my reasons above. I have also amended those draft reasons to include a provision giving the parties liberty to apply on the giving of two days’ notice in writing. The other aspects of the amended draft order are uncontroversial and do not require further ventilation.
Finally as to costs, while the respondent seeks costs on an indemnity basis as, indeed, did the respondent’s opponent in this application, the fact that both parties joined in seeking indemnity costs against each other provides no particular legal basis for me to conclude that I ought award indemnity costs. No particular special circumstances have been pointed to warranting such an order.
Accordingly, costs will be on the standard basis.
Costs, in my view, should follow the event. It was submitted to the contrary by the unsuccessful applicant, particularly because of an asserted failure of the respondent to have engaged, in effect, in negotiations and offers calculated at resolving this particular application in a way which was more acceptable to the applicant. Any such debates between the parties in advance of this litigation were largely minor compared to the major issue about which common ground plainly could not be reached, namely, the issue of whether or not the applicant should be forced to confront an application relating to its limitation period problem at an early stage.
Against that background costs ought follow the event. That is, the applicant should pay the respondent’s costs of and incidental to the application to be assessed on a standard basis. I order as per the amended draft signed by me and placed with the papers.