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WorkCover Queensland v Lismore City Council[2024] QSC 292

WorkCover Queensland v Lismore City Council[2024] QSC 292

SUPREME COURT OF QUEENSLAND

CITATION:

WorkCover Queensland v Lismore City Council [2024] QSC 292

PARTIES:

WORKCOVER QUEENSLAND

(plaintiff)

v

LISMORE CITY COUNCIL

ABN 60 080 932 837

(defendant)

FILE NO:

14153 of 2021

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

13 December 2024

DELIVERED AT:

Brisbane

HEARING DATE:

21 November 2024

JUDGE:

Muir J

ORDER:

  1. 1. The application filed 28 June 2024 is dismissed. 
  2. 2. The proceedings are dismissed pursuant to r 280 of the Uniform Civil Procedure Rules 1999 (Qld).

CATCHWORDS:

PRACTICE AND PROCEDURE – NO STEP IN A PROCEEDING FOR OVER 2 YEARS – RENEWAL OF CLAIM – DISMISSAL OF PROCEEDINGS FOR WANT OF PROSECUTION – where the applicant seeks leave to take a step in the proceeding and renewal of a stale claim – where there is an overlap in the discretionary factors for consideration under both applications – whether there is a good reason to allow the proceeding to continue – whether satisfactory explanations have been provided for the various periods of delay in prosecution of the claim– whether there is prejudice to the respondent as a result of the delay – whether the proceedings should be dismissed for want of prosecution.

Civil Proceedings Act 2011 (Qld)

Limitation of Actions Act 1974 (Qld) s 10, s 11

Local Government Act 1993 (NSW) s 727

Uniform Civil Procedure Rules 1999 (Qld) r 5, r 24, r 280, r 389

Workers' Compensation and Rehabilitation Act 2003 (Qld) s 207B

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541

Cooper v Hopgood & Ganim [1999] 2 Qd R 113

Hall v WorkCover Queensland [2015] 2 Qd R 88

Kuperman v Permanent Trustee Australia Limited [2023] QCA 54

MacDonnell v Rolley & Ors [2000] QSC 58

McIntosh & Anor v Maitland & Ors [2016] QSC 203

Muirhead v Uniting Church in Australia Property Trust [1999] QCA 513

Murdoch Lawyers Pty Ltd & Ors v Gouldson & Anor [2021] QSC 96

Quinlivan v Konowalous & Ors [2019] QSC 285

SMN v WEM [2017] QSC 242

The I.M.B. Group Pty Ltd (in liq) v Australian Competition and Consumer Commission [2007] 1 Qd R 148

Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178

WorkCover Queensland v Wallaby Grip Limited & Anor [2021] QCA 11

COUNSEL:

H Berghofer for the applicant plaintiff

H Blattman KC for the respondent defendant

SOLICITORS:

BT Lawyers for the applicant plaintiff

Moray & Agnew for the respondent defendant

  1. [1]
    The plaintiff, WorkCover, is the statutory insurer for worker's compensation in Queensland constituted under the Workers' Compensation and Rehabilitation Act 2003 (Qld) (“the Act”).  In November 2021, WorkCover filed and ineffectually served a claim and statement of claim on the defendant, Lismore City Council, seeking indemnification from the Council for the sum of $761,267 it paid out as compensation under s 207B (8) of the Act. 
  2. [2]
    By this application filed on 28 June 2024, WorkCover seeks orders under rr 24 and 389 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) for leave to take a step in the proceeding and to renew the claim that went stale on 26 November 2022. The Council opposes the orders sought and contends that the proceedings should be dismissed for want of prosecution in the exercise of this Court’s inherent jurisdiction or under UCPR r 280.   
  3. [3]
    There is considerable overlap between the discretionary factors applicable to the making of the various orders sought in this case. In keeping with the overriding philosophy of UCPR r 5, it is in the interests of justice that these factors be considered together.

Relevant legal principles

  1. [4]
    Under UCPR r 24(1), a claim remains in force for one year, starting on the day the claim is filed. The starting point to enliven the discretion to renew a claim under UCPR 24(2) is that an applicant must show that it made “reasonable efforts” to serve the claim before it expired, or that there is “another good reason” to renew the claim. In the present case, it is uncontroversial that WorkCover deliberately chose to refrain from serving the claim for some time.  The reasons for that decision are discussed under that heading below, but at the outset, the Council emphasised the observations of Keane JA (as his Honour then was) in The I.M.B. Group Pty Ltd (in liq) v Australian Competition and Consumer Commission, that a party who makes such choice “will rarely be able to show good reason to warrant the renewal of the claim”.[1]
  2. [5]
    But of course “rarely” does not mean “never”, and each case turns on its facts.
  3. [6]
    The question therefore is whether there is another good reason to renew the claim. That onus rests with the plaintiff.[2] In reaching an answer, the following non- exhaustive factors are instructive:
  1. 1. The overriding principles espoused by UCPR r 5 form part of the statutory context against which the discretion under r 24 (2) is to be exercised;[3]
  2. 2. Whether the plaintiff’s delay in serving the claim has been satisfactorily explained;[4]
  3. 3. Have the limitation periods of the pleaded causes of action expired; if they have, this usually bodes against renewal;[5]
  4. 4. The strength of the plaintiff’s case (although often difficult to determine at an early stage) is relevant although not singularly determinative;[6] and
  5. 5. Any prejudice to the defendant: the onus does not shift to the defendant to establish prejudice; delay is usually suggestive of some prejudice by reason of deterioration in the scope or quality of witnesses’ recollections of relevant events, even if the documentary evidence remains intact;[7] and assumptions should not be made that defendants are not generally prejudiced by delay.[8] 
  1. [7]
    Where there has been no step in a proceeding for two years from the time the last step was taken, UCPR r 389(2) provides that a new step may not be taken without an order of the court.  In the present case, the last step in the proceeding was the filing of the claim on 26 November 2021.  The grant of leave under this section (or dismissal under UCPR r 280) involves an exercise of the court’s discretion and is “incapable of being exhaustively defined or delimited in a detailed and binding fashion”.[9] 
  2. [8]
    Both sides referred to some of the 12 factors identified by Atkinson J (with whom McMurdo P and McPherson JA agreed) in Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178 at [15] (“Tyler factors”), as relevant to the determination of whether there is a good reason in this case to allow the proceeding to continue when no step has been taken for over two and a-half years. 
  3. [9]
    Each of the relevant Tyler factors in the context of this case are addressed under their respective heading below.
  4. [10]
    The application for leave to renew the claim is arguably not a step that requires leave under UCPR r 389(2).[10]  But it is unnecessary for me to reach a concluded view about this, because the question of whether there is “good reason to renew” an originating proceeding under r 24(2) of the UCPR requires a consideration of factors analogous to those required for a grant of leave to proceed under r 389(2).[11]
  5. [11]
    In the factual context of this case, it is convenient to deal with the application in the way the parties argued it before me – that is, upon a consideration of the Tyler factors; and following that, on the basis that either both the orders sought by WorkCover are granted or both are not; and if it is the latter, the Council’s application for dismissal should be granted.  

Factual Context

  1. [12]
    The claim concerns the recovery of statutory compensation paid by WorkCover to Barry Anthony Priestley, who contracted mesothelioma, allegedly in part, attributable to his exposure to asbestos during his work as a bridge carpenter with the Council for a two-year period in the late 1970’s.  Mr Priestley’s exposure from working for the Council is said to represent approximately 25 per cent of his lifetime exposure to asbestos.  Sadly, Mr Priestley passed away from mesothelioma in July 2016, having only been diagnosed in April 2016, and having provided a statutory declaration about his work with the Council to Workcover in May 2016. This statement identified the specific work he had carried out, where he had been exposed to asbestos, and who his colleagues were.  Mr Priestley’s primary work was with the “bridge crew”, but he also worked at a sewerage treatment plant.
  2. [13]
    On 28 June 2016, WorkCover accepted Mr Priestley’s claim for compensation and paid him the sum of $761,267.  On 13 July 2016, the solicitors for WorkCover advised the Council in writing (by post and email) of its intention to recover the statutory compensation paid to Mr Priestley. WorkCover invited the Council to confirm if its claim was accepted and to advise which solicitors acted on their behalf. At the same time, copies of three doctor’s reports, the May 2016 statutory declaration of Mr Priestley and the payment recoveries history report were provided to the Council. A few hours after the email was sent on 13 July 2016, the solicitors for WorkCover received an email from a customer contact co-ordinator from the Council, advising that the correspondence had been forwarded to “Icare”, the New South Wales government body dealing with workers’ compensation for dust diseases . On 24 October 2016, the solicitors for WorkCover received a response from the NSW Dust Diseases Care scheme advising that the documents did not relate to their scheme.
  3. [14]
    Over five years later, on 26 November 2021, the same solicitors for WorkCover filed the claim and statement of claim in the Supreme Court at Brisbane, and on 30 November 2021 purported to serve these documents by posting them to the registered office of the Council. WorkCover’s explanation for failing to commence proceedings earlier was that it was waiting for a decision from the Queensland Court of Appeal about its right of recovery under s 207B of the Act – in particular, in respect of a worker’s interstate asbestos exposure. The decision of WorkCover Queensland v Wallaby Grip Limited & Anor [2021] QCA 11 (“Wallaby Grip Decision”) was subsequently delivered on 5 February 2021, confirming such a right existed. 
  4. [15]
    On 22 February 2022, the solicitors for WorkCover sent a letter to the General Manager of the Council chasing up a defence. Two days later, the same solicitors sent an email to the Council enclosing a copy of the claim and statement of claim, and advising that their client intended to seek default judgment if a defence was not filed by 4 March 2022. This email generated an automated response as follows:[12]

“Correspondence from residents and ratepayers that contain a specific request of Council will receive a response within 10 working days. Feedback will be passed on to the relevant staff member for their information. Other requests will be replied to as required”.

  1. [16]
    No response from the Council was received. The evidence from Mr James Geikie, the relevant officer from the Council, (having been served personally with the current application on 4 July 2024) is that he had no prior knowledge of the claim by WorkCover. But having made inquiries, he understood (consistent with paragraph 13 above) that the letter of 13 July 2016 was sent to the generic Council email address and a customer coordinator officer sent the documents to the NSW Dust Diseases Care unit, who then responded to the Council and advised that the documents did not relate to that scheme.  Mr Geikie’s evidence also revealed receipt of the other correspondence from the solicitors for WorkCover, including the claim and statement of claim. But again, these documents seem to have been forwarded to the NSW Dusts Disease Care unit (who had already stated it was not part of their remit). It is obvious the claim and statement of claim disappeared into an organisational abyss. This evidence shows why it is critical for those wishing to serve local governments or government departments to comply with the relevant rules and legislative requirements of service.
  2. [17]
    On 7 September 2022, a request for default judgment was filed by the solicitors for WorkCover. This application was rejected by the Supreme Court Registrar on the basis that the claim had not been served in accordance with the UCPR.  It was conceded by WorkCover that the proceedings were not served in accordance with the UCPR and s 727 of the Local Government Act 1993 (NSW); and that the proceedings should have been personally served on the General Manager of the Public Officer for Lismore City Council.
  3. [18]
    Eighteen months later, on 7 March 2024, the solicitors for WorkCover made an application to renew the claim, but this application was rejected on the basis the proceeding itself had gone stale as there had been no step taken for over two years.
  4. [19]
    Over three months later, on 28 June 2024, the present application seeking relief under UCPR rr 24 and 389(2) was filed and made returnable on 11 July 2024. That application was adjourned by consent and  directions were made which included the filing and hearing of the Council’s application for the dismissal of the proceedings.  

Relevant considerations

  1. [20]
    Of the 12 Tyler factors, only nine are relevant to the facts of this case.

Was there delay before the litigation was commenced? [Tyler factor (1)]

  1. [21]
    WorkCover attributes a delay of around eight months between the Wallaby Grip Decision being handed down and the claim being filed.  I assume the eight months is a mathematical miscalculation, as the period between those two dates is one of nine and a-half months. Regardless, no explanation for the delay in this interval is proffered by WorkCover.  The more critical question is whether WorkCover was justified in their delay in filing the claim until after the Wallaby Grip Decision. 
  2. [22]
    The District Court proceedings behind the Court of Appeal hearing that resulted in the Wallaby Grip Decision were commenced in February 2019, and were based on a payment of compensation made in April 2014. The “important” point of law before the Court of Appeal (ultimately answered in the affirmative) was described by Crow AJA as follows:[13]

“ …whether s 207 B affords a right of recovery only for compensation paid for Queensland employment and not for NSW employment or any contribution made to the injury by asbestos exposure in NSW employment.”

  1. [23]
    The solicitors in the present case were also the solicitors for WorkCover in the Wallaby Grip Decision, so that is some explanation for the tactical decision that was made to delay the commencement of the current claim. But that does not mean that decision was a reasonable one.  In my view, it was not, for several reasons.
  2. [24]
    For a start, it does not account for the fact that in July 2016 WorkCover had, through its solicitors, expressly flagged with the Council that it was proceeding with its claim. Further, it does not explain why WorkCover did not file and serve the claim and then seek a stay. On this latter point, the following observations of Davis J in Quinlivan v Konowalous & Ors[14] are most apposite:

“[81] As long ago as 1945 in Battersby v Anglo-American Oil Co Ltd, Lord Goddard, considering the renewal of a writ of summons where a party had elected not to serve a proceeding while some related case was being concluded, said:

“Ordinarily, it is not a good reason that the plaintiff desires to hold up the proceedings while some other case is tried or to await some future development. It is for the court and not for one of the litigants to decide whether there should be a stay, and it is not right that people should be left in ignorance that proceedings have been taken against them if they are here to be served.”

[footnotes omitted, underlining added]

  1. [25]
    It is fairly  conceded by WorkCover that the pre-litigation delay is entirely attributable to it.  I am not otherwise satisfied that this lengthy delay of nearly five and a-half years has been adequately explained or justified.

How long ago the litigation was commenced [Tyler factor 2]

  1. [26]
    The litigation was commenced approximately two years and seven months before this application was made; but, has not progressed, apart from the filing of the claim and statement of claim.

Prospects of success [Tyler Factor 3]  

  1. [27]
    The Council does not contend the claim was hopeless, but pointed to a number of deficiencies in the pleading and evidentiary issues making liability “far from clear.” I accept this is a fair assessment of the case given that:
    1. No basis is pleaded for the allegation underpinning the alleged breach of duty that the Council knew, or ought to have known, of the matters pleaded in paragraph 6 of the statement of claim;
    2. Mr Priestley had, by his own admission, regular and significant exposure to asbestos in Queensland during the six year period from 1973 to 1978 (before he commenced work with the Council);
    3. It does not necessarily follow that because Mr Priestley worked for the Council for approximately two years that his work there caused 25 per cent of his total exposure to asbestos;
    4. Mr Priestley’s statement contains little precise detail of his work as part of a “bridge crew” with the Council, and only identified one job where he could definitively recall working with asbestos; otherwise he generally recalled he was “around” asbestos on many occasions; and
    5. Evidence from a co-worker, Mr Ross Daly, who was also a member of the bridge crew and worked with Mr Priestley, is that he could not recall working with any products containing asbestos.
  2. [28]
    Given the infancy of this litigation, it is impossible for this Court to make any real assessment of WorkCover’s prospects of success. For the purposes of this application, it is fair to assume that there is a serious question to be tried in the proceeding.

Has the litigation been characterised by period of delay? [Tyler factor 5]; Is the delay attributable to WorkCover, the Council or both? [Tyler factor 6]; Has there been a satisfactory explanation for the delay? [Tyler factor 11]

  1. [29]
    It is convenient to deal with these three factors together.
  2. [30]
    WorkCover submitted that there are two primary periods of delay:
    1. The first period of about 7 months between February 2022 to September 2022; and 
    2. The second period of about 18 months between September 2022 to March 2024.
  3. [31]
    The Council submitted that the first period is longer than Workcover suggests because the proceedings were purported to be served on the Council in November 2021. Nothing particular turns on this, but I do not accept this submission because assuming service had been properly effected, the Council had until 3 January 2022 to file a defence – and the evidence shows that WorkCover’s solicitors followed up the Council by letter about that defence in February 2022. It follows that leaving aside the error with service, there was no delay up until that point. More critical is the fact that no explanation at all is given by WorkCover for the delay of seven months before default judgment was sought. 
  4. [32]
    Another gulf in the evidence from WorkCover is the delay caused by the inadequate service of the proceedings on the Council; particularly the lack of explanation as to why (having been on notice from 12 September 2022 when default just was refused), efforts were not made immediately or at least before 26 November 2022 (when the claim went stale) to serve the claim in accordance with the UCPR.
  5. [33]
    There is also no explanation offered for the second period of delay – except that the solicitor with the conduct of the matter from the firm engaged by WorkCover, Mr James Roche, swears that “[t]he delay is attributable to myself and not WorkCover, as I have not prosecuted the claim in this matter in a timely way”.[15] Despite this concession, the written submissions on behalf of WorkCover referred to the Council failing to complain about the effectiveness of service (at the time); and failing to engage with the process.[16] To the extent this is an attempt to attribute blame for delay to the Council, I reject such a contention. The overriding obligations imposed by UCPR r 5 are upon the parties to a proceeding. But those obligations cannot be imposed on the Council until it has been properly served or accepts service in another way. It is WorkCover who has breached the implied undertaking under UCPR r 5(3) to proceed in an expeditious way.
  6. [34]
    The written submissions for WorkCover also conceded that there is no excuse for the delay, but contended that delay has otherwise been properly explained. I accept the concession as a reasonable one, but I reject the notice that the delay has been properly or satisfactorily explained.

Whether blame is attributable to the lawyers [Tyler factor 10]

  1. [35]
    WorkCover’s solicitor, Mr Roche, has nobly fallen on his sword in this case. I accept that dilatoriness by an applicant’s lawyer will not necessarily be sheeted home to the client.  But as was recognised in Tyler – it may be.[17] In such a case, delay for which an applicant for leave to proceed is responsible, is regarded as more difficult to explain than delay by his or her legal advisers.
  2. [36]
    The difficulty in this case is that there is no evidence from WorkCover itself. The evidence from Mr Roche about his firm’s engagement was that WorkCover provided his firm with instructions (he does not say when) to pursue a recovery action, but otherwise, has had no input into, or oversight of, the action or process. And that as far as he is aware (and contrary to the process for common law claims), WorkCover does not have a process for case management or Key Performance Indicators for these types of matters.[18] This evidence is vague and unhelpful and begs more questions than it answers.
  3. [37]
    On any view, WorkCover is a sophisticated litigant, subject to the Model Litigant principles, and well versed in the litigation processes. It is reasonable to assume that WorkCover would have established internal processes for case management and some supervision over the conduct of litigation from its panel firms.  In this case, the only evidence is that the designated panel firm was given free reign. That being the case – WorkCover cannot now hide behind the skirts of its solicitors’ conduct.

Will the litigation between the parties be concluded by the striking out of WorkCover’s claim? [Tyler factor 8]

  1. [38]
    It was submitted for WorkCover that a “significant” discretionary consideration in its favour is that the proceeding “may not be” subject to any limitation period by operation of s 11(2) of the Limitation of Actions Act 1974 (Qld), as it is a proceeding that is “relating to personal injury resulting from a dust-related condition”[19]; and so if leave to continue is not granted, then a further set of proceedings would be filed and the litigation would continue.  On the other hand, the contention that no limitation period applies in this case was not accepted by the Council for the following three reasons:
    1. There was a good argument that the proceeding fell within s 10(1)(d) of the Limitation of Actions Act 1974, and therefore must be brought within six years from the compensation payment being made. The compensation payment was made in June 2016 and Mr Priestley died in July 2016, so if Council is correct, any further proceeding is statue barred;
    2. The decision of Hall v WorkCover Queensland[20] relied upon by Workcover is easily distinguishable for several reasons, including that it concerned a dependency claim for damages under the Civil Proceedings Act 2011; and
    3. Any subsequent claim by WorkCover will most likely be met by an application for a stay for abuse of process by the Council.
  2. [39]
    WorkCover did not engage with these contentions before me, except to say the issue of which limitation period applies in this case will likely be an issue in dispute in any subsequent proceeding filed. There is some force to the Council’s arguments, but in circumstances where the arguments were not fully ventilated before me, it is unnecessary for me to resolve the impasse. I have therefore proceeded on the basis that:
  1. (a)
    there is a serious question to be tried about this factor; and
  2. (b)
    it is reasonable to assume that if the proceedings are dismissed, it may well be that any further proceedings will be confronted with the three matters raised by the Council in the preceding paragraph.

Has the delay resulted in prejudice to the Council leading to an inability to ensure a fair trial? [Tyler factor 12]

  1. [40]
    The Council submitted that it is “now” seriously prejudiced in its ability to defend the claim and this prejudice has accrued because of WorkCover’s delay since the cause of action arose in June 2016. This submission is underpinned by the following evidence:[21]
  1. (a)
    In 1990, there was a cull of Council records and documents were destroyed, which most likely included evidence of, among other things, the nature and period of Mr Priestley’s employment, the tasks performed by Mr Priestley, the location at which those tasks were performed, instructions given about work procedures and safety, what work gear was worn and equipment used, and what products were used or worked on by Mr Priestley;
  2. (b)
    The Council’s sewerage treatment plant was remodelled in 1996 such that the concrete pipes that Mr Priestley says he was exposed to cannot be tested for asbestos;
  3. (c)
    Some of Mr Priestley co-workers have died: Mr Pettaway in 1996 and Mr Daly in October 2010;
  4. (d)
    Another co-worker Mr Smith died on 18 November 2020.  Critically, Mr Smith was the foreman on the work crew and would have been the person most likely to have been able to give evidence about Mr Priestley’s tasks and the work he undertook more generally;   
  5. (e)
    Mr Priestley died in July 2016 and his evidence cannot be tested;
  6. (f)
    Mr Hosking, who was a supervisor/leading hand on the bridge crew, is now under a legal incapacity, having had pronounced dementia since about September 2021;  Mr Daly, one of the members of the bridge crew, previously stated (before his passing) that he could not recall very much and has no knowledge of products containing asbestos being used but notes that Mr Hosking is the only person still alive who may now be able to comment;[22]
  7. (g)
    The loss of all records that had been stored at the Council’s plant during the floods that occurred in Lismore during February 2022. This included the records of the remodeling of the plant in 1996, which would likely have included asbestos surveys;              and
  8. (h)
    The Council no longer has in its possession any employment or personnel records of Mr Priestley; records pertaining to work undertaken by the bridge crew and/or Mr Priestley; records pertaining to work undertaken at the plant at any time between 1978 and 1980, the system of undertaking any such work, and any safety equipment used at the plant; records pertaining to whether any asbestos containing products were present at the plant of the character identified by Mr Priestley as potentially being products giving rise to asbestos containing dust; records of the work methods and safety steps undertaken between 1978 and 1980; records of preparation for and/or undertaking of remodeling of the plant; any asbestos surveys or other documents which would be expected to have been undertaken before the extensive remodeling work at the plant.
  1. [41]
    Against this, WorkCover submitted that it is unlikely that the Council would be prejudiced by the continuation of these proceedings because the issues the Council point to:
    1. are typical for these matters as they result from events that occurred 40 years ago; and
    2. may have well been suffered if the proceedings were prosecuted in a timely way, as these issues existed before the proceedings were filed and/or came about shortly thereafter.
  2. [42]
    The Council submitted that the Court must consider the prejudice more broadly and not just prejudice caused by the delay.[23] I accept that, but in the circumstances of this case there is some force to WorkCover’s submission that in these types of cases it cannot be overlooked that there is always likely to be some prejudice, even if the proceedings had been prosecuted in a timely way.
  3. [43]
    The most relevant prejudice in this case is the prejudice caused by WorkCover failing to diligently prosecute its claim from the outset.  Here, the Council has pointed to several significant areas of possible prejudice arising from the delay in bringing and prosecuting proceedings that have not been sufficiently answered by WorkCover.  Most relevant, in my view, are those set out in paragraphs [40](d), (f) and (g) above. An applicant seeking to leave to proceed or to renew a claim must satisfy the Court that such an order would not result in significant prejudice to the defendant.[24]  I am not satisfied that WorkCover has met this onus.

Conclusion 

  1. [44]
    These proceedings could have and ought to have been commenced back in July 2016. WorkCover made a deliberate decision to delay the proceedings and then failed to properly serve them. Workcover also then failed to act promptly when that fact was realised. There is no satisfactory explanation for the delay of 18 months in bringing this application. There is now further prejudice to the Council because of the delay.
  2. [45]
    Refusing leave may or may not bring an end to the proceedings. The main factor in favour of allowing the matter to proceed is that the Workcover has some prospects of success – the degree of which is impossible to discern at such an early stage.
  3. [46]
    Balancing all of these matters I am not satisfied that WorkCover has shown a good reason for exempting these proceedings from the general prohibition. The appropriate exercise of my discretion is that the orders for leave to proceed and for the renewal of the claim should be refused.
  4. [47]
    It is ordered:
  1. 1.The application filed 28 June 2024 is dismissed. 
  2. 2. The proceedings are dismissed pursuant to UCPR r 280.
  1. [48]
    I can see no reason why costs should not follow the event. Therefore, my initial view is that the appropriate order as to costs is that WorkCover should pay the Council’s costs of the applications. But I will hear from the parties if another costs order is sought or considered more appropriate.

Footnotes

[1] [2007] 1 Qd R 148, p 160 at [53].

[2] Muirhead v Uniting Church in Australia Property Trust [1999] QCA 513 at [29] per Pincus JA.

[3] Quinlivan v Konowalous & Ors [2019] QSC 285 at [76] per Davis J.

[4] The I.M.B. Group Pty Ltd (in liq) v Australian Competition and Consumer Commission [2007] 1 Qd R 148 at 160-161, [53]-[59] per Keane JA. See also Kuperman v Permanent Trustee Australia Limited [2023] QCA 54 at [30].

[5] Murdoch Lawyers Pty Ltd & Ors v Gouldson & Anor [2021] QSC 96 at [61] per Wilson J.

[6] Murdoch Lawyers at [63].

[7] See Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551 per McHugh J.

[8] McIntosh & Anor v Maitland & Ors [2016] QSC  203 at [18] per Jackson J. Murdoch Lawyers at [66].

[9] Cooper v Hopgood & Ganim [1999] 2 Qd R 113, 124.

[10] See the obiter observations of Byrne J (as his Honour then was) in MacDonnell v Rolley & Ors [2000] QSC 58 at [19].

[11] Ibid at [10].

[12] Affidavit of James Roche filed 28 June 2024 at [17].

[13] Wallaby Grip at [18].

[14] [2019] QSC 285.

[15] Affidavit of James Roche filed 28 June 2024 at [55].

[16] Submissions in reply at [19]-[20]. 

[17] Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178 at [15].

[18] Affidavit of James Roche filed 18 November 2024 at [4]-[6].

[19] Applicants outline at [47], with reference to Hall v WorkCover Queensland [2015] 2 Qd R 88; and SMN v WEM [2017] QSC 242 at [40].

[20] [2015] 2 Qd R 88.

[21] Affidavit of James Geikie filed 25 September 2024 at [18]-[26].

[22] Affidavit of Ross Daly filed 25 September 2024.

[23] With reference to Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541.

[24] Muirhead at [31].

Close

Editorial Notes

  • Published Case Name:

    WorkCover Queensland v Lismore City Council

  • Shortened Case Name:

    WorkCover Queensland v Lismore City Council

  • MNC:

    [2024] QSC 292

  • Court:

    QSC

  • Judge(s):

    Muir J

  • Date:

    13 Dec 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
3 citations
Jump To
Cite 1 - (1996) 186 CLR 541
Cite 2 - (1996) 186 CLR 541
Cite 3 - (1996) 186 CLR 541
Brisbane South Regional Health Authority v Taylor [1996] HCA 25
2 citations
Jump To
Cite 1 - [1996] HCA 25
Cite 2 - [1996] HCA 25
Cooper v Hopgood & Ganim[1999] 2 Qd R 113; [1998] QCA 114
2 citations
Jump To
Cite 1 - [1999] 2 Qd R 113
Cite 2 - [1999] 2 Qd R 113
Hall v WorkCover Queensland[2015] 2 Qd R 88; [2014] QCA 135
3 citations
Jump To
Cite 1 - [2015] 2 Qd R 88
Cite 2 - [2015] 2 Qd R 88
Cite 3 - [2015] 2 Qd R 88
Kuperman v Permanent Trustee Australia Limited [2023] QCA 54
2 citations
Jump To
Cite 1 - [2023] QCA 54
Cite 2 - [2023] QCA 54
MacDonnell v Rolley [2000] QSC 58
2 citations
Jump To
Cite 1 - [2000] QSC 58
Cite 2 - [2000] QSC 58
McIntosh v Maitland [2016] QSC 203
2 citations
Jump To
Cite 1 - [2016] QSC 203
Cite 2 - [2016] QSC 203
Muirhead v The Uniting Church in Australia Property Trust [1999] QCA 513
2 citations
Jump To
Cite 1 - [1999] QCA 513
Cite 2 - [1999] QCA 513
Murdoch Lawyers Pty Ltd v Gouldson(2021) 7 QR 726; [2021] QSC 96
2 citations
Jump To
Cite 1 - [2021] QSC 96
Cite 2 - [2021] QSC 96
Quinlivan v Konowalous [2019] QSC 285
3 citations
Jump To
Cite 1 - [2019] QSC 285
Cite 2 - [2019] QSC 285
Cite 3 - [2019] QSC 285
SMN v WEM [2017] QSC 242
2 citations
Jump To
Cite 1 - [2017] QSC 242
Cite 2 - [2017] QSC 242
The IMB Group Pty Ltd (in liq) v Australian Competition and Consumer Commission[2007] 1 Qd R 148; [2006] QCA 407
3 citations
Jump To
Cite 1 - [2007] 1 Qd R 148
Cite 2 - [2007] 1 Qd R 148
Cite 3 - [2007] 1 Qd R 148
Tyler v Custom Credit Corp Ltd [2000] QCA 178
3 citations
Jump To
Cite 1 - [2000] QCA 178
Cite 2 - [2000] QCA 178
Cite 3 - [2000] QCA 178
WorkCover Queensland v Wallaby Grip Limited(2021) 7 QR 63; [2021] QCA 11
2 citations
Jump To
Cite 1 - [2021] QCA 11
Cite 2 - [2021] QCA 11

Cases Citing

Case NameFull CitationFrequency
Queensland Building and Construction Commission v JP1592 Pty Ltd [2025] QDC 282 citations
1

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