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Perry v Assured Concreting Services Pty Ltd[2025] QSC 200

Perry v Assured Concreting Services Pty Ltd[2025] QSC 200

SUPREME COURT OF QUEENSLAND

CITATION:

Perry v Assured Concreting Services Pty Ltd [2025] QSC 200

PARTIES:

LUKE PERRY

(applicant)

v

ASSURED CONCRETING SERVICES PTY LTD

ACN 162 005 398

(first respondent)

QLD TILT PANELS PTY LTD AS TRUSTEE FOR THE QLD TILT PANELS FAMILY TRUST

ACN 610 865 293

(second respondent)

EVANS BUILT PTY LTD

ACN 120 743 099

(third respondent)

FILE NO/S:

BS 1335/25

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

22 August 2025

DELIVERED AT:

Brisbane

HEARING DATE:

15 May 2025

JUDGE:

Treston J

ORDER:

  1. Pursuant to s 31(2) of the Limitation of Actions Act 1974 (Qld) the limitation period in respect of the applicant’s claim for damages for personal injury arising on 23 August 2019 against the first respondent be extended until 17 June 2025.
  2. The first respondent pay the applicant’s costs of this application on the standard basis.

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER – GENERALLY – where the applicant suffered injuries at a worksite – where the applicant contends he became aware of the contractual relationships between relevant parties out of time – where the applicant applies to extend the limitation period – whether the applicant had knowledge of the contractual relationships between relevant parties within the limitation period – whether the contractual relationships between relevant parties constitutes a material fact of a decisive character – whether the applicant had taken all reasonable steps to find out the contractual relationships between the relevant parties before such information was disclosed to him – whether the extension of the limitation period should be granted

Limitation of Actions Act 1974 (Qld), ss 11, 30, 31,

Personal Injuries Proceedings Act 2002 (Qld), ss 9, 27, 43

Workers Compensation and Rehabilitation Act 2003 (Qld), s 279

BEK v BEL [2024] QCA 154

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Dick v University of Queensland [2000] 2 Qd R 476

Harris v Evans Built Pty Ltd [2025] QSC 104

Moriarty v Sunbeam Corporation Limited [1988] 2 Qd R 325

Neilson v Peters Ship repair Pty Ltd [1983] 2 Qd R 419

NF v State of Queensland [2005] QCA 110

Queensland v Stephenson (2006) 226 CLR 197

Wolverson v Todman [2016] 2 Qd R 106

COUNSEL:

MJ Smith for the applicant

AC Harding for the first respondent

SOLICITORS:

L & H Injury Lawyers for the applicant

HBM Lawyers for the first respondent

  1. [1]
    The substantive application brought by the applicant in this proceeding is for an order that pursuant to s 31(2) of the Limitation of Actions Act 1974 (Qld) (LAA), the limitation period in respect of the applicant’s claim for damages for personal injuries arising on 23 August 2019 against the first respondent, be extended.
  2. [2]
    The applicant was injured in a workplace accident on a construction site which occurred on 23 August 2019, therefore the ordinary limitation period expired on 24 August 2022 (LAA, s 11(1)).
  3. [3]
    The relevant date upon which the applicant relies as the date when he became aware of a material fact of a decisive character within the meaning of s 31(2) of the LAA, is 17 June 2024 or alternatively 19 June 2024.
  4. [4]
    When the matter came on before me on 15 May 2025 – recognising that the matter may not be decided before 17 or 19 June 2025 – the parties agreed that the court ought to make an order for the purpose of protecting any (further) limitation issues, such that the applicant should be granted leave pursuant to s 43(1) of the Personal Injuries Proceedings Act 2002 (Qld) (PIPA) to commence proceedings in the Supreme Court of Queensland for damages based on a liability for personal injuries against the first respondent and that that proceeding be stayed pending judgment of the applicant’s application pursuant to s 31(2) of the LAA and, if appropriate, until the applicant complies with Chapter 2 Part 1 of PIPA, or the proceedings are discontinued or otherwise end.
  5. [5]
    The first respondent supported the making of such an order. Accordingly, such an order was made. Accordingly, the limitation period was protected until further order of the court.
  6. [6]
    On the substantive limitation period application, only the first respondent (Assured) appeared on the application and opposed the extension of the limitation period.  The second and third respondents were served with the application and indicated that they did not oppose the application and did not intend to appear upon the hearing of it.

Background to the proceedings

  1. [7]
    The applicant was injured on 23 August 2019 when a trench collapsed on him whilst he was at a work site at Rothwell.  In an affidavit sworn 11 April 2025, the applicant identified his employer as Assured Concreting Services, and said that that business was operated by Nick and Carli Chabau.  The applicant had known Nick and Carli for approximately 20 years and had worked for them on approximately three occasions over the course of that 20-year period.  On each occasion he worked for them, he believed that he was employed by Assured Concreting Services.  He understood Nick Chabau to be the person who did the quoting and concreting work and Carli to be the person who worked in the office and did the pays.
  2. [8]
    The applicant wore a uniform with the name “Assured Concreting Services” on the front, while other clothing such as hats and shirts carried that same name.  Trucks and Utes operating in the business had a logo on the side which read, Assured Concreting Services.
  3. [9]
    The third respondent, Evans Built, was the main contractor on the Rothwell site and in control of the workplace.  The applicant was working in a trench with another person (Mr Harris) when a trench collapsed on to him causing significant injury including numerous fractures of the pelvis and the right sacrum as well as a range of associated neurological injuries including an L5-S1 disc protrusion. 
  4. [10]
    On 27 August 2019, Evans Built prepared an incident report in relation to the accident.  Evans Built recorded the applicant’s employer as “Assured Concrete” and provided the contact details of the employer as “Nick” and provided Nick’s phone number.
  5. [11]
    On 30 August 2019, the applicant provided a statement to the Department of Workplace Health and Safety (Office of Industrial Relations) in which he identified himself as a trade qualified concrete/finisher employed by “Assured Concrete Services Pty Ltd” and stated that he had been working for Assured at the construction site at Rothwell on the day of the accident.[1]
  6. [12]
    After his workplace accident, the applicant attended upon Maurice Blackburn Lawyers on 28 October 2019, and engaged them to act on his behalf to pursue a claim for damages for personal injuries arising out of the workplace accident.  He advised Maurice Blackburn Lawyers that his employer was Assured Concreting Services.
  7. [13]
    Maurice Blackburn identified that the third respondent was the principal contractor on the site, and on 25 September 2020, Maurice Blackburn caused the applicant to serve a Notice of Claim pursuant to s 9(3) of PIPA upon, Evans Built.  In answer to question 9 of that Notice, the applicant described that he commenced employment with “the Trustee for the QLD Tilt Panel’s Family Trust trading as Assured Concrete Services” in April 2019.  It is not clear what searches had been undertaken to ascertain the correct name of the applicant’s employer for the purpose of that notice, however it is accepted that the employer was so correctly identified at that stage.
  8. [14]
    On 18 August 2022, a Notice of Assessment was received from WorkCover.
  9. [15]
    On 19 August 2022, proceedings were commenced against Evans Built, which proceedings are presently stayed.
  10. [16]
    Maurice Blackburn then caused the applicant to serve a Notice of Claim for Damages on WorkCover Queensland on 4 November 2022. That Notice of Claim for Damages identified the trading name of the employer as “The Trustee for QLD Tilt Panels Family Trust trading as Assured Concrete Services (ABN 29470806062)”. In answer to question 52 in that Notice of Claim, the applicant provided the name of his employer as “The Trustee for the Qld Tilt Panels Family Trust” and provided the same ABN.
  11. [17]
    On 25 November 2022, solicitors appointed on behalf of WorkCover, Mullins Lawyers, forwarded a letter of contribution to Evans Built.  The letter identified that WorkCover Queensland was the client and the client’s insured was “QLD Tilt Panels Pty Ltd ttee”.
  12. [18]
    On 2 February 2023, solicitors on behalf of WorkCover confirmed the applicant’s Notice of Claim for Damages to be compliant, and to the extent any aspects of it were non-compliant, waived that non-compliance. 
  13. [19]
    On 23 May 2023, Clyde & Co, for Evans Built, wrote to Maurice Backburn and confirmed that the applicant’s PIPA Notice to Evans Built was compliant. The letter raised no issue that any other party was identified as a contributor to the claim.
  14. [20]
    On 4 July 2023, Maurice Blackburn sent correspondent to the applicant advising that they were no longer able to act on his behalf due to a conflict.
  15. [21]
    On 2 August 2023, Mullins Lawyers, on behalf of WorkCover, wrote to Maurice Blackburn advising that they held instructions to inform the applicant (and Evans Built, who had been given notice as a contributor) that:
    1. liability in connection with the event to which the claim relates was denied for reasons including that the employer did not breach its duty of care to the applicant, the employer had provided a safe system of work, the employer had developed a Safe Work Method Statement which was followed at the time;
    2. that it was not reasonably foreseeable to the employer that the trench would collapse and cause injury;
    3. that the employer was not the principal contractor or occupier on the site when the site was under the control of Evans Built;
    4. that the employer considered that Evans Built had control of the site and knew or ought to have known about the presence of a stormwater pipe in the vicinity of the trench, the presence of which contributed to the collapse of the trench; and
    5. that the employer was unaware of the presence of the stormwater pipe and the existence of it was not communicated to the employer by the representatives of Evans Built.
  16. [22]
    Nothing in the letter of 2 August 2023 suggested that the employer or WorkCover had identified any other contributor, and raised no contribution claim or factual matter asserting that any other party was properly a party to the applicant’s claim.  Furthermore, the letter of 2 August 2023 did not identify that there was any contractual relationship between Evans Built and some other party, notably the first respondent, so as to put the applicant on notice that the first respondent had been identified as a possible contributor.
  17. [23]
    On 8 September 2023, Clyde & Co sent an email to Maurice Blackburn enclosing by way of disclosure a copy of the subcontract between Evans Built Pty Ltd and Assured Concreting Services Pty Ltd ATF Integral Concreting Services Family Trust.  That subcontract was undated and unsigned.   I return to some issues in relation to the disclosure of this unsigned subcontract below.  
  18. [24]
    On 28 November 2023, the current solicitors for the applicant were first contacted by Maurice Blackburn in relation to taking over the proceedings on behalf of the applicant.  A signed irrevocable authority followed on 1 December 2023, and on 12 December 2023, the current solicitors were provided with a copy of Maurice Blackburn’s file.
  19. [25]
    On 19 January 2024, the now solicitors for the applicant wrote to WorkCover’s solicitors, identifying WorkCover’s insured as “The Trustee for the QLD Tilt Panels Family Trust trading as Assured Concreting Services” and requesting, pursuant to s 279(1) of the Workers Compensation and Rehabilitation Act 2003 (Qld) (WCRA), amongst other things:
    1. details of when the installation and location of the stormwater pipe were communicated to the employer, to whom and how;
    2. copies of all documents evidencing the communication of the installation and location of the stormwater pipe to the employer; and
    3. details as to when geotechnical reports were provided to the employer.
  20. [26]
    On 11 March 2024, WorkCover’s solicitors responded to the request for information of 19 January 2024, providing various responses regarding the information which was known to the employer regarding the location of stormwater pipes, the information which had been passed from the employer to its workers (including the applicant) which consisted of hand-drawn diagrams and site plans which had been provided by Evans Built.  Nothing in the response of 11 March 2024 suggested that the applicant’s lawyers had misnamed the employer, or that the employer was other than had been identified in the applicant’s letter of 19 January 2024 being, “The Trustee for the QLD Tilt Panels Family Trust trading as Assured Concreting Services”.  Indeed, the correspondence referred to Nick Chabau as “the Director of the Employer” and did not seek to draw any distinction between QLD Tilt Panels Pty Ltd and the first respondent.
  21. [27]
    Carter Newell Lawyers then took over on behalf of Evans Built.  On 17 June 2024, the now solicitors for the applicant received a piece of correspondence from Carter Newell setting out what that firm understood to be the contractual relationship between the parties at the time of the accident.  The relevant parts of the letter are as follows:

“… we take this opportunity to outline the steps our client alleges it took to inform its contractor, Assured Concreting Services Pty Ltd (“Assured”) and/or your client’s employer, QLD Tilt Panels Pty Ltd of the existence of a nearby stormwater pipe.

History of Site

As you [are] aware, our client was the principal contractor for the site in question.  As part of that project, our client contracted excavation works on site to Assured.

On our client’s current instructions, the excavation works under the contract were not subcontracted to a different entity.  Nevertheless, we understand your client’s employer is in fact QLD Tilt Panels Pty Ltd.  We have made enquiries with the solicitors for WorkCover as to the precise relationship between these two entites and await a response.  It nevertheless appears as though they were closely related – albeit we understand the employer entity may recently have been voluntarily deregistered.  From our client’s perspective however, it was dealing with a Mr Nick Chabau (“Chabau”), who it understood to be a director of Assured, and it was that entity who was responsible for and was conducting the works in question (even if, as appears to be the case, the workers utilised may have been employed by a different entity).

…

On 4 July, our client invited Chabau of Assured to provide a quote for the specific subject works, which were essentially a variation on the initial contract works.

…

Further to the above, we advise that prior to commencing works on site, our client was provided with a SWMS, competed by Chabau of Assured.  We presume you hold this document.  Under the SWMS, Assured was required to, amongst other things:

1. Positively identify all known services;

2.Inspect the trench daily;

  1. Check to see if the trench needs shoring due to a depth of 1.5m; and
  1. Do not enter any trench of more than 1.5m unless the trench is benched, battered or shored.

…”

(my underlining)

  1. [28]
    Carter Newell went on to observe that it was clear from certain photographs, which it also provided to the solicitors for the applicant, that either Assured and/or the employer must have excavated around the stormwater pipes when digging an earlier trench, and was therefore clearly aware of the presence of the stormwater pipes on the site.
  2. [29]
    Carter Newell went on to assert the weaknesses of the claim against its client, Evans Built, and concluded:

“… our client believes Assured needs to be a party to the claim and we have instructions to issue a contribution notice upon Assured.  While it is obviously a matter for you and your client, we would have thought your client may also wish to pursue a claim against Assured.”

(my underlining)

  1. [30]
    The first occasion that the applicant became aware that his employer was a different entity to the first respondent was on 17 June 2024, when he received a call from his now solicitors who had received that correspondence from Carter Newell Lawyers on behalf of Evans Built.  On that occasion the applicant was advised that Evans Built asserted that the first respondent and his employer were different entities, that the contract for the excavation works was between the first respondent and Evans Built, that Evans Built was dealing with Mr Chabau who was the Director of the first respondent, and it was that entity which was responsible for and conducting the works in question. 
  2. [31]
    Additionally, in this telephone call the applicant’s solicitor described that photographs showed that Assured and/or the second respondent must have excavated around a stormwater trench when digging an earlier trench, and therefore must have been aware of the presence of the stormwater pipes on the site. 
  3. [32]
    The applicant’s evidence is that up until this point he was not aware that the first respondent was a separate entity to his employer, the second respondent to these proceedings.  Rather, he always thought that he was employed by an entity known as Assured Concreting Services, and he did not realise that that was a separate entity to the second respondent.
  4. [33]
    The solicitor for the applicant undertook an ASIC search of Assured Concreting Services Pty Ltd on 19 June 2024 which identified that Nick Chabau was a Director of Assured, but was not a Director of the second respondent.
  5. [34]
    On 30 July 2024, Carter Newell served a Contribution Notice on the first respondent identifying:
    1. that the applicant was in fact employed by QLD Tilt Panels Pty Ltd trading as Assured Concrete Services, which must have been related to, or sourced by, Assured Concreting Services;
    2. the third respondent engaged the first respondent to perform excavation and retaining wall works;
    3. the third respondent provided the first respondent with plans and drawings which noted the presence of the stormwater pipe on the site; and
    4. the first respondent had actual knowledge that the stormwater pipes had been installed on the site.
  6. [35]
    Thereafter, on 23 August 2024, Mullins Lawyers acting on behalf of WorkCover confirmed that:
    1. Assured Concreting Services was a different, and standalone entity, to the insured employer, QLD Tilt Panels Pty Ltd as trustee;
    2. there was no formal contract in place between Assured Concreting Services and the employer regarding the provision and supply of labour and the work performed at the site; and
    3. the applicant was an employee of QLD Tilt Panels Ltd ttee at the time of the incident, as was Mark Harris, and their employment was “transferred over” to Assured Concreting Services in or around April 2020.
  7. [36]
    The solicitors for the applicant then took steps to serve a Part 1 Notice of Claim upon the first respondent and on 18 February 2025, solicitors on behalf of the first respondent took issue with the fact that the Notice of Claim had been served outside the period of limitation.

The legislation and the case law

  1. [37]
    A claim for damages for personal injuries must be brought within three years of the cause of action arising.[2]
  2. [38]
    However, s 31(2) of the LAA empowers the court to extend the period of limitation for an action, including for personal injury, where it appears to the court that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action, and that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation.
  3. [39]
    Section 30 of the LAA defines both the material facts relating to a right of action, and material facts relating to a right of action that are of a decisive character as follows:

“30Interpretation

(1)For the purposes of this section and sections 31, 32, 33 and 34─

(a)the material facts relating to a right of action include the following─

(i)the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded;

(ii)the identity of the person against whom the right of action lies;

(iii)the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;

(iv)the nature and extent of the personal injury so caused;

(v)the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty;

(b)material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing─

(i)that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and

(ii)that the person whose means of knowledge is in question ought in the person’s own interests and taking the person’s circumstances into account to bring an action on the right of action;

(c)a fact is not within the means of knowledge of a person at a particular time if, but only if─

(i)the person does not know the fact at that time; and

(ii)as far as the fact is able to be found out by the person─the person has taken all reasonable steps to find out the fact before that time.

(2)In this section─

appropriate advice, in relation to facts, means the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts.”

  1. [40]
    The first inquiry therefore, is whether the facts of which the applicant was unaware were material facts (s 30(1)(a)).  Secondly, if the facts be material, were they of a decisive character (s 30(1)(b)).  Thirdly, it must be ascertained whether those facts were within the means of knowledge of the applicant before the specified date (s 30(1)(c)).[3]  Only once the answers to those questions are established in favour of the applicant should the court consider whether there is evidence to establish a right of action apart from the limitation defence.
  2. [41]
    An applicant for an extension of the limitation period bears a heavy evidentiary and persuasive onus on the application.[4] 
  3. [42]
    There is no dispute that it is the means of knowledge of the applicant himself which is relevant, and the question is whether he had taken all reasonable steps to find out the information before 17 June 2024, but it must be a question of fact in any given case.[5]
  4. [43]
    It is necessary therefore, to determine if and when there was at some earlier stage a set of facts known to the applicant which, if known to a reasonable person, properly advised, would have led that person to regard those facts as constituting a good cause of action against the first respondent which the applicant ought, in his own interests, pursue by commencing an action.[6]
  5. [44]
    Whether an applicant for an extension of time has taken all reasonable steps to find out a fact, can only be answered by reference to what can reasonably be expected from the actual person in the circumstances of the applicant. If the person has taken all the reasonable steps to find out the fact, and has not found it out, then the fact is not within the person’s means of knowledge.[7]

Disclosure of an unsigned subcontract

  1. [45]
    There is some inconsistency in relation to the evidence as to when the subcontract between the first and third respondents was disclosed.
  2. [46]
    In his first affidavit, Mr Pash, solicitor for the first respondent says that:

“On or around 11 April 2019 the Third Respondent and the Assured Concreting Services Pty Ltd entered into a Formal Instrument of Agreement for Contract in relation to the subcontract construction work associated with the Hope Centre – New Moreton Campus at 463 Anzac Avenue, Rothwell, Queensland (the Site, the Hope Centre and the Contract). Exhibited and marked GLP-1 to this affidavit is a copy of the signed Contract.”

  1. [47]
    The signed copy of the contract was not in fact exhibited at exhibit GLP-1. Only an unsigned version was so exhibited. That unsigned version compromised 161 pages.  In that bundle, is a letter from Evans Built to Assured Concreting Services Pty Ltd atf Integral Concreting Services Family Trust dated 28 March 2019. The subject line of that letter is entitled “NOTICE OF ACCEPTANCE”, and in the body of the document, the following appears:

“Your tender for the Supply and Installation of Concrete place & tilt panels is hereby accepted in the amount of $394,454.50 (Three Hundred and Ninety Four Thousand Four Hundred and Fifty Four Dollars and Fifty Cents) including GST, as detailed in the attached schedules.

The Formal Instrument of Agreement, AS4903-2000, which you will be required to sign, is being prepared and must be signed within fourteen (14) days of a date to be notified. Access to the Evans Built standard AS4903-2000 and Special Conditions via the Evans Built website was confirmed with the Subcontractor at the Tender Review Meeting (a copy of the signed tender review meeting minutes is attached to this notice of acceptance). The Subcontractor has agreed to be bound by the terms and conditions of the AS4903-2000 and the Special Conditions.

Please note the following dates applicable to your contract:

Contract Commencement Date: 1 APRIL 2019

Practical Completion Date: 30 AUGUST 2019”

  1. [48]
    There are several aspects of the letter, signed by Mr Toovey, Project Manager of Evans Built, which suggest that the contract terms were settled between the parties, including:
    1. the use of the terminology, “your tender…is hereby accepted…”;
    2. a “contract commencement date” just days after the date of the letter; and
    3. that the letter identifies the subcontractor’s obligations in terms of insurance, workplace health and safety and GST. 
  1. [49]
    Against that, the formal agreement was still to be signed.
  2. [50]
    In any event, Mr Pash’s first affidavit says nothing about whether the terms of that contract were disclosed to the applicant.  There is no reason to think the applicant knew of the contract at the time and I accept his evidence that he did not know.
  3. [51]
    Mr Pash’s second affidavit of 13 May 2025 contains the following at paragraphs 3 and 4:

“3. At paragraph 4 in my previous Affidavit of 17 April 2025, I referred to a copy of the signed contract between the First Respondent and Third Respondent but instead exhibited a copy of the unsigned contract. Exhibit and marked GLP-1 to this affidavit is a copy of the signed contract.

  1. By an email at 3:50pm on 8 September 2023, a copy of the unsigned subcontract agreement between First Respondent and Third Respondent was disclosed by Clyde & Co acting on behalf of the Third Respondent to Maurice Blackburn acting on behalf of the Applicant. The unsigned contract contained at pages 102-103 a signed acceptance of the First Respondent’s tender for the works. Exhibited and marked GLP-2 is a copy of the said email together with the unsigned copy of the contract.”
  1. [52]
    The signed contract, GLP-1 to Mr Pash’s affidavit, this time comprised 163 pages, the additional pages appearing to include a letter from Evans Built to the first respondent dated 12 April 2019 stating “Please find enclosed executed copy of Subcontract Agreement for your records.”
  2. [53]
    Mr Pash’s affidavit does not suggest that this letter of 12 April 2019, or the copy of the signed contract, was at any time served on the solicitor for the applicant prior to the service of his affidavit on 13 May 2025.
  1. [54]
    The disclosure of the unsigned contract – the subject of the fourth paragraph of Mr Pash’s affidavit set out above – then purports to identify what was sent by Clyde &Co by was of disclosure on 8 September 2023
  2. [55]
    Next, pages 274 to 277 of exhibit GLP2 is Schedule B to the subcontract agreement, is documentation identifying the scope of work. Numerous handwritten changes have been made to that document and each of the changes are initialled. No party has sworn to whose those initials are, but as the document is clearly signed by both Assured and Mr Toovey on behalf of Evans Built, it can fairly be inferred that the initials are those of the signing parties.
  3. [56]
    Further, pages 282 to 293 of exhibit GLP-2 are the Tender Review Minutes. This is the documents referred to in the second paragraph of Mr Toovey’s letter of 28 March 2019 above.
  4. [57]
    The Tender Review Minutes document contained a term on the last page which recorded:

“The Subcontractor must return the signed tender review minutes prior to any contract being formalised.  By signing below, the Subcontractor agrees that it has reviewed, satisfied itself, and agreed to the terms set out in this document.”

(my underlining)

  1. [58]
    The Tender Review Minutes were signed by someone on behalf of Assured, presumably in accordance with the above term. Although the printed name and signature is difficult to read, Mr Chabau is identified as Assured’s representative on the document, with his email and mobile number listed. 
  2. [59]
    It can be inferred that the Tender Review Meeting documents were signed sometime prior to Mr Toovey’s letter of 28 March 2019, because that letter enclosed a signed copy of them.
  3. [60]
    The applicant’s solicitor, Ms Heffernan, deposes to the fact that she was told by Maurice Blackburn that they received the unsigned, undated contract between the first and third respondent on 8 September 2023. However, Ms Heffernan further deposes:

“6. The first time I provided a copy of the unsigned and undated contract between the First Respondent and Third Respondent (Heffernan Affidavit Exhibit MLH17) to the Applicant was on 21 April 2025 when I emailed the Applicant a copy of the Affidavit of Gregory Pash sworn 17 April 2025 which exhibited a copy of the unsigned contract.

  1. The Applicant’s file received from Maurice Blackburn Lawyers does not contain any correspondence providing the Applicant with a copy of the Workplace Health and Safety File (Heffernan Affidavit Exhibit MLH16) or the unsigned and undated contract between the First Respondent and Third Respondent (Heffernan Affidavit Exhibit MLH17).
  1. On 7 April 2025 I obtained a copy of the Affidavit of Timothy McClymont sworn 25 February 2025 from the Supreme Court in Brisbane which was filed in the matter of 9931/22 Harris v Evans Built Pty Ltd & another. Exhibit TAM4 to this Affidavit is a copy of a signed contract between the First Respondent and Third Respondent. This was the first time I was provided a signed contract between the First Respondent and Third Respondent.”
  1. [61]
    Ms Heffernan was not challenged in relation to any of that evidence.
  2. [62]
    I accept therefore that neither the applicant’s former solicitors, nor his current ones, provided to the applicant a copy of the unsigned and undated contract until 21 April 2025. I further accept that the applicant’s former solicitors never received a copy of the signed and dated contract, and that the current solicitors only received it on 7 April 2025.
  3. [63]
    The parties to the unsigned, undated agreement were identified as Evans Built as the main contractor, and Assured Concreting Services Pty Ltd atf Integral Concreting Services Family Trust, was described as the subcontractor.  The subcontract was in the form an Australian Standard 4903-2000 and was for a sum of $394,454.50.  The contract included numerous attachments identified as Parts A to N. 
  4. [64]
    At the date the unsigned subcontract document was disclosed by way of correspondence of 8 September 2023, it was over four years since the applicant’s accident had occurred and almost three years since the applicant had given his PIPA notice of claim to Evans Built.  It was almost one year since the applicant had given his notice of claim to WorkCover, and more than six months since WorkCover had confirmed the notice of claim was compliant.  Despite the fact that both sets of pre-court procedures had been on foot for some time, with the attendant disclosure obligations that each involved, neither respondent to the pre-court procedures had previously disclosed the unsigned, undated subcontract.

Analysis

  1. [65]
    There are a number of features which satisfy me that there ought to be an order for an extension of time in the applicant’s favour. In addressing these issues, I bear in mind the two principles articulated in Neilson v Peters Ship repair Pty Ltd[8] that first, as a matter of statutory construction, where a solicitor is engaged, the person whose knowledge is relevant for s 31(2) LAA purposes is the client, not the solicitor, and second, that in engaging a solicitor the plaintiff must still do their best to ensure that the solicitor does not languish in the prosecution of the action.[9]
  2. [66]
    The first respondent contends that the evidence shows that by 12 December 2023, the applicant’s current solicitors had the following collection of information available to them:
    1. a statement which the applicant had made to the Department Workplace Health and Safety, in which the applicant stated that “Assured Concrete Services Pty Ltd” was performing work on the site subcontracting to Evans Built;
    2. an unexecuted copy of the subcontract which had been obtained from Evans Built, which contract recorded Assured Concreting Services Pty Ltd as the subcontractor.  The unexecuted and undated subcontract also recorded Assured Concreting Services (ABN 29584334198) and its QBCC licence number 15007056;
    3. employment records showing that the applicant’s employer was “The Trustee for the QLD Tilt Panels Family Trust” which had a different ABN to that shown in the unexecuted subcontract (ABN 29470806062);
    4. evidence that the depth of the trench was 1540 millimetres on the high side;
    5. the Safe Work Method Statement bearing the logo Assured Concreting Services which provided, amongst other things, that workers were not to enter any trench of the depth of more than 1.5 metres unless the trench was bench, battered or shored;
    6. evidence that the trench was not benched, battered or shored and that Assured Concreting had no control measures in place to prevent the trench collapsing; and
    7. identified grounds of negligence causative of the applicant’s injuries alleged against the applicant’s employer (who by that state the applicant’s solicitors believed to be the subcontractor), that there was a failure to ensure that there was adequate ground support, i.e. shoring to avoid the risk of the trench collapsing and a failure to provide “dial before you dig” information or to ensure that Evans Built had done so.
  3. [67]
    So described, the first respondent seeks to characterise that the material facts of a decisive character relating to the right of action (against the first respondent) were within the applicant’s means of knowledge by that date.[10]
  4. [68]
    There are a number of things to be said about this submission.
  5. [69]
    Firstly, the date which the defendant identifies of 12 December 2023, is the date that the applicant’s current solicitors received the applicant’s file from his former solicitors.  It is unrealistic to expect that the applicant’s current solicitors had the ability to read, consider and form an opinion about all the factual matters contained in the file on the very day they received it. Nevertheless, I put the date itself aside for the balance of the submissions.
  6. [70]
    Second, whilst it is the combination of factors which the first respondent identifies as the material fact of a decisive character relating to the right of action (against the first respondent) which may have been within the applicant’s means of knowledge, it is important to look at each such factor both individually and collectively.
  7. [71]
    The first respondent places some significant weight on the applicant’s statement to the Department of Workplace Health and Safety, that Assured Concrete Services Pty Ltd were performing work on the site subcontracting to Evans Built.  It is true that the applicant’s statement records this, but the statement is taken somewhat out of context.  The statement that Assured Concrete Services were subcontracting to Evans Built was said by the applicant in the context of his statement that he was in fact employed by Assured Concrete Services Pty Ltd.  That of course is inaccurate; he was in fact employed by the second respondent.  In the same way, the applicant identified that the site foreman, Mark Harris, was also employed by Assured Concrete Services Pty Ltd when, factually, the matter proceeded before me on the basis that that was also inaccurate, as Mr Harris was also employed by the second respondent.
  8. [72]
    To the extent that the applicant’s statement to Workplace Health and Safety described that “Assured” was “contracting to” Evans Built does not suggest to me any genuine understanding of the contractual relationship that in fact existed between the first and third respondents, but rather was a descriptor to identify the party who Mr Perry thought was responsible for the site as the principal contractor (the third respondent) as opposed to the party by whom he was employed, in truth the second respondent.
  9. [73]
    I therefore do not take the applicant’s statement to be evidence of his actual knowledge of the contractual arrangements which existed at the time of the accident. But even if it was, it was inaccurate, as the employer in fact had no contractual relationship to the third respondent.
  10. [74]
    Thirdly, there is no such company as Assured Concrete Services Pty Ltd, nor is there any such business name.  There is of course a company, Assured Concreting Services Pty Ltd, the first respondent to these proceedings, but that is not the company who the applicant identified to the Department of Workplace Health and Safety.  The applicant was never employed by the company which he identified as his employer to the Department of Workplace Health and Safety.  Indeed, I would take the applicant’s knowledge as communicated to the Department of Workplace Health and Safety in the days after the accident as demonstrating that he understood he worked for a business generally known as Assured Concreting Services, as demonstrated on the shirt that he wore and the vehicle in which he drove.  The misidentification of the business name in the Department of Workplace Health and Safety statement was simply an error which was not picked up by the applicant when he signed that statement nor in fact by the Department of Workplace Health and Safety officers whose job it was to investigate the accident. 
  11. [75]
    Fourth, Mr Perry has given evidence that he had no knowledge of the unexecuted contract between the first and third respondents. He was not cross-examined on that issue, or at all. I reject the first respondent’s submission that he in fact had that knowledge by 12 December 2023. However, it is the means of knowledge of the applicant which is relevant, and the question of whether he has taken all reasonable steps to find out that knowledge.[11] As such, it is a question of fact whether in a given case, to leave such matters to a solicitor amounts to taking reasonable steps.
  12. [76]
    It is significant, in my view, that upon the applicant’s new solicitors taking over the file on 12 December 2023, they reviewed all the material contained in it and did not identify that there was a likely contributor, the first respondent, who had not been joined to the proceeding. The solicitor formed the view that there was further disclosure to be obtained from WorkCover and the employer, and requested it on 19 January 2024. The request pertained to a broad range of matters (predominantly information pertaining to liability issues, about their client’s knowledge of the presence of the stormwater pipe in the vicinity of the collapsed trench), but the identification of a contributor not previously joined was not one of them. At that stage, there was no signed contract disclosed, and no reason for the new solicitors to think that there was one.
  13. [77]
    A similar request for further disclosure was made on that same date to Clyde & Co on behalf of Evans Built. Again, the request went to liability related issues.
  14. [78]
    No replies were forthcoming, and the solicitor for the plaintiff followed the issue up on 29 February 2024 with both parties.
  15. [79]
    On 11 March 2024 Mullins replied, and on 22 May 2024, Carter Newell replied now on behalf of Evans Built. Still no issue was raised by either firm as to the likely involvement of the first respondent.
  16. [80]
    On 7 June 2024, a solicitor at Carter Newell telephoned Ms Heffernan and advised (amongst other things) that since he had come into the matter it had come to his attention that the party who Evans Built contracted with was not the same party who “seemed” to employ the applicant. The solicitor had raised the issue with WorkCover but had not had a response. Ms Heffernan recorded that the solicitor seemed to think that the parties were related, but was unsure of the relationship between them.
  17. [81]
    Ms Heffernan wrote to WorkCover on 12 June 2024, seeking information as to the relationship between the parties now described as the first and second respondents, and enquiring as to who employed the applicant’s supervisor, Mr Harris.
  18. [82]
    On 17 June 2024, Carter Newell advised Ms Heffernan that: 
    1. the first and second respondents were different entities;
    2. the subcontract was in fact between the first and third respondents;
    3. Mr Chabau was a director of the first respondent, which was responsible for carrying out the works;
    4. the location of the stormwater drain was communicated to Mr Chabau and Mr Harris;
    5. the Safe Work Method Statement had been completed by Mr Chabau;
    6. the photographic evidence showed that the first and/or second respondent must have excavated around the storm water drain and therefore must have known of the presence of the pipes on the site;
    7. requested that the scheduled compulsory conference could be re-scheduled to allow Evans Built to serve a contributor’s notice on the first respondent.
  19. [83]
    At the same time, Carter Newell provided a large number of documents going to the liability case which had not previously been disclosed.
  20. [84]
    In my view, it can hardly be supposed that in circumstances where by 17 June 2024, numerous sets of experienced personal injuries solicitors (Maurice Blackburn, Mullins, Clyde & Co, Carter Newell and L&H Injury Lawyers) actively turning their minds to the issue of the identity of a party and their role in the contractual circumstances, were not in a position to identify the first respondent as a contributor against whom there might be evidence to establish a right of action, that a lay person such as Mr Perry ought to have been able to do so six months earlier, i.e. by 12 December 2023. Mr Perry did not have access to material (including a signed contract) which would have allowed him to do so, and he had no reason to think his employer was other than the party who had contracted with Evans Built.  He acted reasonably by leaving the matter in the hands of his solicitors in the particular circumstances of this case.
  21. [85]
    In the circumstances, I am not satisfied that individually or in combination, the matters relied upon by the first respondent set out at [66] could constitute the material facts of a decisive character necessary to deny the extension of time.
  22. [86]
    I am fortified as to the reasonableness of Mr Perry’s conduct by regard to the related issue of disclosure.
  23. [87]
    Pursuant to s 27 of PIPA a respondent to a claim must give a claimant copies of documents in the respondent’s possession that are “directly relevant to a matter in issue in the claim”.  Evans Built therefore had such an obligation having been served with a Notice of Claim on 25 September 2020.  The unsigned, undated copy of the contract was provided to the former solicitors for the applicant by the solicitors for Evans Built on 23 September 2023.  No signed copy of the contract was provided until Ms Heffernan sought it out in the related matter of Harris, in which she did not act. She says that occurred on 7 April 2025, and she was not challenged in relation to that. I accept that evidence.
  24. [88]
    Similar disclosure provisions exist under the WCRA as under PIPA.  Section 279 requires the parties to cooperate in relation to a claim by giving each other copies of relevant documents within 21 business days of the claimant giving the insurer a notice of claim.  Again, no signed and dated contract was produced by the second respondent in the WCRA proceedings, although I pause to observe that it might be thought to be much less likely that the second respondent would have had access to that contract given that the contract was between the third respondent and the first respondent, and not the employer. 
  25. [89]
    What follows from the provisions of PIPA in particular, is that the applicant here, acting reasonably and in his own interests, can fairly proceed on the basis that relevant documents in a respondent’s possession ought to have been disclosed in the pre-court processes, and it was not.  The fact that no contributors notice was given by the third respondent to the first respondent would have, in my opinion, reinforced that reasonably formed view.
  26. [90]
    And, as I said in the related case of Harris,[12] whilst it is not necessary to blame the third respondent for the failure to provide the documentation earlier, relevantly for the purpose of the enquiry, it informs the question of the reasonableness of the applicant’s own conduct, as well as that of his advisors. To the extent that there was disclosure of an unsigned version of the subcontract which was provided in September 2023, it expressly recorded that it was documentation “prior to any contract being formalised”.  Given that no copy of the signed contract was produced by the third respondent until 13 May 2025, at the time of receiving the unsigned contract in September 2023, some four years after the accident had occurred, it would have been a fair assumption on the applicant’s part that there was no such signed contract in respect of the works which were being carried out.
  27. [91]
    In all the circumstances it seems to me that the plaintiff did not have the material facts of a decisive character within his means of knowledge at any time prior to 17 June 2024 and there ought to be an order pursuant to s 31(2) of the LAA extending the limitation period.
  28. [92]
    As I recorded at the outset, when the matter was heard by me on 15 May 2025 the parties agreed that, so as to protect the plaintiff’s interests pending the reserved judgment, the court ought to order that the applicant be granted leave pursuant to s 43(1) of the PIPA to commence proceedings in the Supreme Court of Queensland for damages based on the liability for personal injuries against the first respondent.  A further order was made that that proceeding be stayed pending judgment of the applicant’s application pursuant to s 31(2) of the LAA and thereafter, if appropriate, until the applicant complies with Chapter 2 Part 1 of PIPA, or the proceedings are discontinued or otherwise end.  That order was made by me on 15 May 2025.  The expiration of the limitation period therefore having otherwise being protected by that order, it is appropriate to make the following order:
  1. Pursuant to s 31(2) of the Limitation of Actions Act 1974 (Qld) the limitation period in respect of the applicant’s claim for damages for personal injury arising on 23 August 2019 against the first respondent be extended until 17 June 2025.
  1. [93]
    The proceeding otherwise being stayed by virtue of the order which I made on 15 May 2025, the proceeding will remain stayed until the applicant complies with Chapter 2 Part 1 of PIPA, or until the proceedings are discontinued or otherwise end.
  2. [94]
    The application for the extension of limitation period having been successful, the first respondent is ordered to pay the applicant’s costs of the application on a standard basis.

Footnotes

[1]  The claimant did not describe the employer as Assured Concreting Services, but as Assured Concrete Services. As such, the identified employer in this document is neither the first, second nor third respondent.

[2] Limitation of Actions Act 1974 (Qld), s 11.

[3] Dick v University of Queensland [2000] 2 Qd R 476 at 485 [26] (Thomas JA).

[4] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553 – 554 (McHugh J); Wolverson v Todman [2016] 2 Qd R 106 at 124 [30].

[5]  That is the test set out by Holmes JA (as her Honour then was) in Wolverson v Todman [2016] 2 Qd R 106 at 119 [2].

[6] Moriarty v Sunbeam Corporation Limited [1988] 2 Qd R 325 at 338 (Derrington J); BEK v BEL [2024] QCA 154 at [92] (Brown JA).

[7] NF v State of Queensland [2005] QCA 110 at [29] (Keane JA).

[8]  [1983] 2 Qd R 419 at 430 (McPherson J).

[9] Wolverson v Todman [2016] 2 Qd R 106 at 134 [63] (Gotterson JA).

[10] Queensland v Stephenson (2006) 226 CLR 197.

[11] Wolverson v Todman [2016] 2 Qd R 106 at [2] and [63].

[12] Harris v Evans Built Pty Ltd [2025] QSC 104.

Close

Editorial Notes

  • Published Case Name:

    Perry v Assured Concreting Services Pty Ltd

  • Shortened Case Name:

    Perry v Assured Concreting Services Pty Ltd

  • MNC:

    [2025] QSC 200

  • Court:

    QSC

  • Judge(s):

    Treston J

  • Date:

    22 Aug 2025

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
BEK v BEL [2024] QCA 154
2 citations
Jump To
Cite 1 - [2024] QCA 154
Cite 2 - [2024] QCA 154
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
2 citations
Jump To
Cite 1 - (1996) 186 CLR 541
Cite 2 - (1996) 186 CLR 541
Harris v Evans Built Pty Ltd [2025] QSC 104
2 citations
Jump To
Cite 1 - [2025] QSC 104
Cite 2 - [2025] QSC 104
Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325
2 citations
Jump To
Cite 1 - [1988] 2 Qd R 325
Cite 2 - [1988] 2 Qd R 325
Neilson v Peters Ship Repair Pty Ltd [1983] 2 Qd R 419
2 citations
Jump To
Cite 1 - [1983] 2 Qd R 419
Cite 2 - [1983] 2 Qd R 419
NF v State of Queensland [2005] QCA 110
2 citations
Jump To
Cite 1 - [2005] QCA 110
Cite 2 - [2005] QCA 110
State of Queensland v Stephenson (2006) 226 CLR 197
2 citations
Jump To
Cite 1 - (2006) 226 CLR 197
Cite 2 - (2006) 226 CLR 197
University of Queensland v Dick[2000] 2 Qd R 476; [1999] QCA 474
2 citations
Jump To
Cite 1 - [2000] 2 Qd R 476
Cite 2 - [2000] 2 Qd R 476
Wolverson v Todman[2016] 2 Qd R 106; [2015] QCA 74
5 citations
Jump To
Cite 1 - [2016] 2 Qd R 106
Cite 2 - [2016] 2 Qd R 106
Cite 3 - [2016] 2 Qd R 106
Cite 4 - [2016] 2 Qd R 106
Cite 5 - [2016] 2 Qd R 106

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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