Buchanan v Sword Holdings Pty Ltd

[2004] QSC 9

SUPREME COURT OF QUEENSLAND

CITATION:

Buchanan v Sword Holdings Pty Ltd [2004] QSC 009

PARTIES:

RAYMOND THERESE BUCHANAN
(Plaintiff/Respondent)
v
SWORD HOLDINGS PTY LTD (ACN 009 693 618)
(Defendant/Applicant)

FILE NO/S:

S.974 of 2003

DIVISION:

Trial

PROCEEDING:

Application for Extension of Time

ORIGINATING COURT:

SUPREME COURT

DELIVERED ON:

6 February 2004

DELIVERED AT:

TOWNSVILLE

HEARING DATE:

2 February 2004

JUDGES:

CULLINANE J.

ORDER:

I order that the time to effect service upon the applicant and WorkCover pursuant to ss.306(3)(b) and (4) respectively of WorkCover Queensland Act 1996 be extended so that they expire no later than 4 pm on 20^th February 2004.

Respondent/plaintiff is to pay the applicant/defendant’s costs of and incidental to the application to be assessed.

CATCHWORDS:

PROCEDURE – SERVICE OF STATEMENT OF CLAIM – failure to serve within time under WorkCover Queensland Act 1996 – where service not effected due to slip of employee – whether extension of time will result in effective service of employer.

COUNSEL:

A Moon , for the plaintiff
R Aldridge, for the defendant

SOLICITORS:

Jeffrey Dillon and Associates for the plaintiff
Mullins Lawyers for the defendant

1. In this matter the defendant has applied to the court seeking a declaration that service of proceedings on both the defendant and WorkCover Queensland has not been lawfully effected because of the failure to serve the defendant within 60 days of a holding of a compulsory conference under WorkCover Queensland Act 1996 as that subsection requires.

1. There is a further requirement that following service being effected upon the defendant service must be effected upon WorkCover within 30 days thereafter.

1. The respondent/plaintiff on the other hand seeks an order under s.306(3)(b) extending the time within which to effect service upon the employer. 

1. The relevant history of the matter generally is contained in an affidavit of the respondent’s solicitor (Margaret Ann Evans).

1. The s.293 conference was held on 15^th October 2003 but this did not result in a settlement of the matter.

1. The history of the matter from the time of the lodgement of the WorkCover claim is set out in paragraphs 7 to 10 of that affidavit.

1. Counsel was instructed on 27^th November 2003 to draft a claim and statement of claim.  It appears that there was some delay encountered in having the file costed, something which the respondent requested and this in turn delayed the delivery of brief to counsel.

1. The period for service under s.306(3) expired on Monday 15^th December 2003.

1. The solicitor sent a facsimile transmission to the solicitors acting for WorkCover on 12^th December 2003 asking whether those solicitors had instructions to accept service on behalf of WorkCover and informing the solicitor that the employer would be served by registered mail.

1. The initiating proceedings had been filed on 11^th December and it is accepted that these proceedings were initiated within time.

1. On 15^th December 2003, a facsimile transmission was received from WorkCover’s solicitor advising that he did not have instructions to accept service.

1. It appears that the respondent’s solicitor’s personal secretary was away for the week beginning 8^th December 2003 and a temporary replacement was instructed to arrange service upon the defendant employer by registered mail.  For some reason this did not occur, something which the solicitor found upon her return after also being away for a week.

1. She caused the claim and statement of claim to be sent to both the employer and WorkCover Queensland by registered mail under a covering letter of 16^th December 2003 posted on the following day.

1. A conditional notice of intention to defend has been served by the solicitors acting for WorkCover. No prejudice is contended for by the applicant.

1. In the course of argument, counsel for the applicant contended that there is no power to entertain an application under s.306(3)(b) after the expiration of the 60 days.  It was also contended that no nunc pro tunc order could be made so as to validate service already effected.

1. Counsel was however, prepared to accept that it would be open to the court to make an order under s.291 of the Act.  This provides as follows:

“If a party fails to comply with a provision of this chapter, a court may order the party to comply with the provision, and may make consequential or ancillary orders that may be necessary or desirable in the circumstances of the case.”

1. This section was the subject of the judgment of Helman J in WorkCover Queensland v Lucas (2003) QSC28.  His Honour thought that the section was one which permitted a defaulting party in an appropriate case to seek relief from the consequences of non-compliance with provisions of the Act.  I respectfully agree.

1. Counsel for the respondent in the course of his argument sought to rely upon s.291 as an alternative to s.306(3)(b) and ultimately indicated that he would be content with an order under that section.

1. It seems to me that so far as the merits are concerned the circumstances warrant the exercise of the discretion in the respondent’s favour.  As I have said, no prejudice is alleged.  The default involves a relatively short time.  The proceedings were instituted within time and solicitors acting for WorkCover were aware of their institution.  The failure to serve within time seems to have been the result of a slip by a temporary employee.

1. It is unnecessary in these circumstances to consider the arguments raised by counsel for the applicant.  It suffices to say that the argument seems to require the taking of a restrictive view of s.306(3)(b) for which there is not an immediately obvious justification in its terms and for which there is not an immediately obvious justification for any implication to that effect.

1. I order that the time to effect service upon the applicant and WorkCover pursuant to ss.306(3)(b) and (4) respectively of WorkCover Queensland Act 1996 be extended so that they expire no later than 4 pm on 20^th February 2004.

1. The proceedings were of course instituted by the applicant employer.  However the matter proceeded with the respondent/plaintiff having the carriage of the application and seeking an extension of the relevant times. Since she seeks a dispensation from the consequences of a failure to comply with the requirements of the Act by her I think the appropriate order to make is that the respondent/plaintiff pay the applicant/defendant’s costs of and incidental to the application to be assessed.