Brittain v Hentys (a firm) - [2017] QSC 40

SUPREME COURT OF QUEENSLAND

CITATION:

Brittain v Hentys (a firm) & Ors [2017] QSC 40

PARTIES:

CRAIG WILLIAM BRITTAIN

(applicant)

v
HENTYS (A FIRM)

(first respondent)
and
JEFFREY ROLLS
(second respondent)
and
WORKCOVER QUEENSLAND
(third respondent)
and
BRISBANE BEARS – FITZROY FOOTBALL CLUB LIMITED
(fourth respondent)

FILE NO/S:

SC No 9941 of 2016

DIVISION:

Supreme Court – Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

22 March 2017

DELIVERED AT:

Brisbane

HEARING DATE:

25 November 2016

JUDGE:

Flanagan J

ORDER:

The answer to question 1 (as amended) is “yes”.
The answer to question 2 is “yes”.
I will hear the parties as to costs.

CATCHWORDS:

WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – PRELIMINARY REQUIREMENTS – CLAIMS FOR COMPENSATION – TIME FOR CLAIM – where the applicant sought to give WorkCover a notice of claim – where the applicant had not been given a notice of assessment under s 185 of the Workers’ Compensation and Rehabilitation Act 2003 – where the giving of the notice of claim prior to being given a notice of assessment by the insurer does not comply with s 275 of the Workers’ Compensation and Rehabilitation Act 2003 – where the notice of claim does not comply with s 250 of the Workers’ Compensation and Rehabilitation Act 2003 – where the insurer had not waived the noncompliance of the notice of claim – whether the applicant was a claimant able to seek damages pursuant to Chapter 5 of the Workers’ Compensation and Rehabilitation Act 2003 – whether a claimant may seek damages for an injury by giving a notice of claim in circumstances where they had not been given a notice of assessment – whether a notice of claim for damages issued prior to a notice of assessment can halt the limitation period in s 302 of the Workers’ Compensation and Rehabilitation Act 2003 – whether a notice of claim given in contravention of s 250 of the of the Workers’ Compensation and Rehabilitation Act 2003 is invalid – whether the notice was taken to be a complying notice of claim pursuant to s 274(4) of the Workers’ Compensation and Rehabilitation Act 2003 - whether WorkCover can waive noncompliance with s 275 of the Workers’ Compensation and Rehabilitation Act 2003

Limitation of Actions Act 1974 (Qld), s 31(2)

Uniform Civil Procedure Rules 1999 (Qld), r 483(1)

Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 4(2), s 5, s 180, s 183, s 185, s 233, s 236, s 237, s 239, s 245, s 250, s 251, s 258, s 273, s 275, s 276, s 278, s 279, s 281, s 296(a), s 297, s 298, s 302, Schedule 6

Workers’ Compensation and Rehabilitation Regulation 2003 (Qld), s 111

Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; [2006] HCA 32, distinguished

Brighton Und Refern Plaster Pty Ltd v Boardman (2006) 225 CLR 402; [2006] HCA 33, distinguished

Charlton v WorkCover Qld [2007] 2 Qd…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] QSC 40
Decision Date: 22 March 2017

CaseChat Overview and Summary

Brittain v Hentys (a firm) involved a dispute regarding the validity of a notice of claim for damages under the Workers' Compensation and Rehabilitation Act 2003 (Qld) ("the Act"). Mr Brittain, the applicant, sought to give a notice of claim to WorkCover for damages relating to injuries he had previously claimed compensation for, but for which he had not yet received an assessment of permanent impairment. The critical issue was whether Mr Brittain could lawfully give a notice of claim before receiving a notice of assessment under section 185 of the Act, as required by section 275, and whether such a notice could halt the limitation period in section 302 of the Act. Additionally, the court had to determine if the notice of claim was valid despite not complying with section 250 of the Act and if WorkCover could waive the non-compliance.

The court considered the statutory requirements under the Act and relevant precedents. It held that Mr Brittain’s notice of claim, given before receiving a notice of assessment, was still effective in halting the limitation period as per section 278(4) of the Act. The court reasoned that although the notice did not strictly comply with section 250, it was sufficient to trigger the limitation period moratorium under section 302. The court also found that WorkCover could not waive the non-compliance with section 275 retroactively, but since the notice was effective in halting the limitation period, it was deemed a complying notice under section 274(4) of the Act.

The court concluded that Mr Brittain could secure a halt to the running of the limitation period by giving a notice of claim even without a prior notice of assessment, and that the notice given on 30 April 2010 was taken to be a complying notice of claim under section 278(4) of the Act. The court directed that the parties would be heard regarding costs.

Orders

Orders of the court

The answer to question 1 (as amended) is “yes”.

The answer to question 2 is “yes”.

I will hear the parties as to costs.

Background

Background to the litigation

The relevant legislation is the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“the Act”). The Agreed Facts On 30 April 2010 Mr Brittain sought to give to WorkCover a notice of claim for damages pursuant to section 275 of the Act.[1] [1] The Notice of Claim for Damages is attachment A to the Agreed Facts Annexure to the originating application. In respect of the alleged injuries, Mr Brittain had previously applied for, and been allowed, statutory compensation under the Act. As at 30 April 2010 Mr Brittain’s injuries had not been assessed for permanent impairment and he had not been given a notice of assessment under section 185 of the Act. Whilst it is not an agreed fact, it is common ground that Mr Brittain did not receive a notice of assessment until about 15 May 2011.[2][2] Outline of Submissions by the Third Respondent and Fourth Respondent, [2]. Attachment B to the Agreed Facts Annexure to the originating application contains correspondence from WorkCover’s solicitors to Mr Brittain’s solicitors for the period 7 May 2010 to 20 October 2010. It is necessary to briefly summarise this correspondence. By letter dated 7 May 2010 WorkCover acknowledged receipt on 30 April 2010 of Mr Brittain’s notice of claim for damages dated 28 April 2010. The letter relevantly stated:“I note that your client has not received a Notice of Assessment from WorkCover for any of the injuries claimed in response to question 41. Your client is not entitled to seek damages or give a Notice of Claim until at least one of the injuries claimed has been assessed, pursuant to Sections 237 and 250 of the Workers’ Compensation and Rehabilitation Act 2003 (the Act). Accordingly, I return the Notice of Claim given to WorkCover.To eliminate any further delays, I suggest your client approach the WorkCover office to determine if the injuries claimed have been sustained and if so to provide a Notice of Assessment or Damages Certificate for those injuries.If pursuant to the Limitations of Actions [Act] 1974, the period for bringing a proceeding for damages is close to expiry, I draw your attention to Sections 276, 297 and 298 of the Act.” The 7 May 2010 letter purportedly enclosed the notice of claim and “List of Areas of non‑compliance”. It is common ground that no such enclosures were attached. On 14 May 2010 Mr Brittain’s solicitors wrote to WorkCover:“We refer to your letter dated 7 May 2010.We note that in your aforesaid letter that the Notice of Claim (“Notice”) provided to WorkCover Queensland (“WQ”) is to be returned. We further note that in fact the Notice has not been returned to us and we advise that there is no basis for you to return the Notice, as it is a complying Notice which was on our instructions to expire on 4 May 2010. Furthermore, in our letter to you dated 4 May 2010, we confirm that we would comply with WQ’s reasonable conditions at a later date.We request that our client’s injury being the subject of these claims, pursuant to Sections 237 and 250 of the Workers Compensation Rehabilitation Act 2003 be assessed for permanent impairment.”

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

To take advantage of the limitation moratorium in section 302(1)(a)(i), Mr Brittain must be taken to have given a complying notice of claim before the end of the period of limitation. This presents no difficulties in relation to the injury which occurred 14 May 2009. In relation to the January 2007 injury for which the limitation period had expired prior to the giving of the notice of claim on 30 April 2010, there is authority that the term “period of limitation” in the precursor to section 302 includes one extended under section 31 of the Limitation of Actions Act 1974, whether the order under section 31 was made before or after an application for leave under the precursor to section 298 of the Act.[34] Whether Mr Brittain may take advantage of the moratorium on the limitation period in respect of the January 2007 injury depends on the outcome of any application to extend time pursuant to section 31 of the Limitation of Actions Act 1974. [34] See Charlton v WorkCover Qld [2007] 2 Qd R 421; [2006] QCA 498.Conclusion The answer to question 1 as amended, namely “whether Mr Brittain, in giving a notice of claim, in circumstances where he had not been given a notice of assessment, may nonetheless secure a halt to the running of the limitation period (section 302) by relying on section 278(4) of the Act?” is “yes”. The answer to question 2, “was the notice given to WorkCover on 30 April 2010 ever taken to be a complying notice of claim pursuant to section 278(4) of the Act?” is also “yes”.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Brittain v Hentys (a firm) & Ors [2017] QSC 40
PARTIES:	CRAIG WILLIAM BRITTAIN (applicant) v HENTYS (A FIRM) (first respondent) and JEFFREY ROLLS (second respondent) and WORKCOVER QUEENSLAND (third respondent) and BRISBANE BEARS – FITZROY FOOTBALL CLUB LIMITED (fourth respondent)
FILE NO/S:	SC No 9941 of 2016
DIVISION:	Supreme Court – Trial Division
PROCEEDING:	Originating Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	22 March 2017
DELIVERED AT:	Brisbane
HEARING DATE:	25 November 2016
JUDGE:	Flanagan J
ORDER:	The answer to question 1 (as amended) is “yes”. The answer to question 2 is “yes”. I will hear the parties as to costs.
CATCHWORDS:	WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – PRELIMINARY REQUIREMENTS – CLAIMS FOR COMPENSATION – TIME FOR CLAIM – where the applicant sought to give WorkCover a notice of claim – where the applicant had not been given a notice of assessment under s 185 of the Workers’ Compensation and Rehabilitation Act 2003 – where the giving of the notice of claim prior to being given a notice of assessment by the insurer does not comply with s 275 of the Workers’ Compensation and Rehabilitation Act 2003 – where the notice of claim does not comply with s 250 of the Workers’ Compensation and Rehabilitation Act 2003 – where the insurer had not waived the noncompliance of the notice of claim – whether the applicant was a claimant able to seek damages pursuant to Chapter 5 of the Workers’ Compensation and Rehabilitation Act 2003 – whether a claimant may seek damages for an injury by giving a notice of claim in circumstances where they had not been given a notice of assessment – whether a notice of claim for damages issued prior to a notice of assessment can halt the limitation period in s 302 of the Workers’ Compensation and Rehabilitation Act 2003 – whether a notice of claim given in contravention of s 250 of the of the Workers’ Compensation and Rehabilitation Act 2003 is invalid – whether the notice was taken to be a complying notice of claim pursuant to s 274(4) of the Workers’ Compensation and Rehabilitation Act 2003 - whether WorkCover can waive noncompliance with s 275 of the Workers’ Compensation and Rehabilitation Act 2003 Limitation of Actions Act 1974 (Qld), s 31(2) Uniform Civil Procedure Rules 1999 (Qld), r 483(1) Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 4(2), s 5, s 180, s 183, s 185, s 233, s 236, s 237, s 239, s 245, s 250, s 251, s 258, s 273, s 275, s 276, s 278, s 279, s 281, s 296(a), s 297, s 298, s 302, Schedule 6 Workers’ Compensation and Rehabilitation Regulation 2003 (Qld), s 111 Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; [2006] HCA 32, distinguished Brighton Und Refern Plaster Pty Ltd v Boardman (2006) 225 CLR 402; [2006] HCA 33, distinguished Charlton v WorkCover Qld [2007] 2 Qd…