Day v State of Queensland

SUPREME COURT OF QUEENSLAND

CITATION: Day v State of Queensland [2000] QSC 401
PARTIES: VICKY MARGARET DAY
(Applicant)
v
STATE OF QUEENSLAND
(Respondent)
FILE NO/S: No 63 of 2000
DIVISION: Trial
PROCEEDING: Civil Application
ORIGINATING
COURT: Supreme Court at Cairns
DELIVERED ON: 1 September 2000
DELIVERED AT: Cairns
HEARING DATE: 15 May 2000
JUDGE: Jones J
ORDER:

1. The application is dismissed.
2. The applicant is to pay the respondent’s costs of and incidental to the application to be taxed.
COUNSEL: Mr A. Philp for the plaintiff / applicant
Mr E. Hoare for the defendant / respondent
SOLICITORS: Arnell & Cooper for the plaintiff / applicant
MacDonnells as town agents for the Crown Law Office for
the defendant / respondent

JONES J: This is an application for a declaration that the Notice of Claim for
Damages dated 7 April, 2000 lodged by the applicant (hereinafter “the claimant”)
complies with s.280 of the WorkCover Act 1986 (“the Act”).
The delivery of the Notice of Claim was a preliminary step in the claimant’s
intention to seek damages in respect of a work related injury suffered by her on 7
April 1997. The Notice of Claim is thus delivered on the last day of the statutory
limitation period.
To commence proceedings now the claimant must rely on the provisions of s.308 of
the Act which is in the following terms:-
308(1) A claimant may bring a proceeding for damages for personal injury after the end of the period of limitation allowed for bringing a proceeding for damages for personal injury under the Limitation of Actions Act 1974 only if –
(a) before the end of the period of limitation –

(i) the claimant gives a notice of claim that is a complying notice of claim; or
(ii) the claimant gives a notice of claim for which WorkCover waives
compliance with the requirements of section 280; or
(iii) a court makes a declaration under section 304; or
(iv) a court gives leave under section 305; and
(b) the claimant complies with section 302.”

The argument in this case focuses on the first of the above qualifying events viz
whether the claim was a complying notice of claim.
The claimant cannot take advantage of any of the other qualifying events because
she has not, before the end of the period of limitations, received a waiver of
compliance with s.280 of the Act by WorkCover, has not made a declaration under
s.304 nor has the court given leave under s.305.
The claimant received a notice of assessment on 27 May 1999 stating that she
sustained a non-certifiable injury (s.253(1)(a)(ii)). She did not respond to that
notice within the required time and is thus deemed to have rejected the offer of
compensation made in that notice of assessment.
To be eligible to commence court proceedings the claimant had to have delivered to
WorkCover within the limitation period a notice of claim for damages pursuant to s.280. That section sets the various matters which have to be incorporated in such a
notice.
But there is a distinction between a notice that satisfies the requirements of s.280 of
the Act and what is meant by “a complying notice of claim”. The latter has the
element of WorkCover’s satisfaction.
To be of any worth, the application that I have to determine depends upon the
claimant’s Notice of Claim being “a complying notice of claim” as that term is used
in s.308(1)(a)(i) of the Act.
There appears to be two ways in which a notice of claim can fit the description of a
“complying notice of claim”. The first is by way of WorkCover’s response to a
notice of claim. S.282(2) provides as follows:-
“(2) WorkCover must, within 30 days after receiving the notice, give the
claimant written notice –
(a)      stating whether WorkCover is satisfied that the notice of claim complies with section 280 (a “complying notice of claim”); and
(b)      if WorkCover is not so satisfied – identifying the noncompliance and stating whether WorkCover waives compliance with the requirements; and
(c)      if WorkCover does not waive compliance with the requirements – allowing the claimant a reasonable period of at least 30 days either to satisfy WorkCover that the claimant has complied with the requirements or to take reasonable action to remedy the noncompliance.”
The second way is by means of court declaration pursuant to s.304 of the Act which
is essentially a review of WorkCover’s initial response. That section provides as
follows:-
“304.(1) Subject to section 303, the claimant may start the proceeding if the court, on application by the claimant dissatisfied with WorkCover’s response under section 282 to a notice of claim, declares that –
(a) notice of claim has been given under section 280; or
(b) the claimant is taken to have remedied noncompliance with the requirements of section 280.”
The claimant here contends that whether a notice of claim is or is not “complying”
is a question of fact to be determined objectively rather than simply based on
WorkCover’s response pursuant to s.282(2) of the Act.
For WorkCover it is argued that only a notice of claim about which WorkCover is
satisfied as to compliance fits the description of “a complying notice of claim”.
No question of a waiving of noncompliance or of a remedied noncompliance arises
here, so the application succeeds or fails on the construction of s.308(1)(a)(i).
In this case the features which WorkCover contend lead to a conclusion that the
notice of claim was noncomplying were not identified in any document tendered on
this application. It appears from a letter dated 10 May, 2000 written by Crown Law
Office on behalf of WorkCover [1] that the claimant was notified of WorkCover’s
response to the notice of claim on 5 May 2000. It is clear from that exhibit that
WorkCover’s opinion was that the notice of claim was noncomplying.
[1] Ex. “LSR8” to the affidavit of Laura Rega filed by leave
Various words and phrases are defined throughout the Act as well as in “Schedule
3 – Definitions”. In respect of the terms “complying notice of claim” the schedule
simply refers to s.282 for the meaning of that term. Prima facie, therefore the term
refers to a claim about which WorkCover has the relevant degree of satisfaction.
That degree of satisfaction is subject to review by the court upon an application made pursuant to s.304. That seems to me to be the way in which an “objective”
determination of compliance is to be made.
Defined in this way, there does not appear to me to be any basis for suggesting that
“complying notice of claim” can be determined outside the meaning given to it for
the purpose of the Act. It is “a sound rule of construction to give the same meaning
to the same words appearing in different parts of a statute unless there is reason to
do otherwise.” [2]It seems to me that the use of this phrase in s.308 was intended to
have the meaning given to it in s.282(2).
[2] Per Mason J Registrar of Titles (WA) V Franzon [1975] 132 CLR 611 at p.618
In Canning v Brisbane City Council & Ors [3], Williams J had to determine whether,
pursuant to s.305 of the Act, the Court could grant leave to commence proceedings
in circumstances where a claimant had given notice of a claim only 5 days before
the expiration of the limitation period. The claimant sought leave on the basis that
as WorkCover had not advised whether it was satisfied that the notice was
complying and was not required to do so within the limitation period, his claim
would be defeated if leave were not granted.
[3] QSC 149 – 19 May 2000
In the course of argument His Honour considered whether s.308 applied in the
circumstances and decided it did not. The following passage appears in paragraph 8
of the judgment:-
“Section 308 of the Act provides that, if the claimant has given a complying notice of claim (that is a notice under s.280) before the end of the applicable limitation period, the limitation period is to be extended in accordance with the provisions of the Act; it is not necessary to set out those further requirements here. The proposition was accepted by all counsel that a “complying notice of claim” for purposes of s.308(1)(a)(i) was a notice which WorkCover had determined under s.282 to be a notice complying with s.280. That was not the factual situation here, no decision on that yet having been made. Therefore s.308(1)(a)(i) could not apply to extend the limitation period applicable to the applicant’s cause of action against WorkCover and the second and third respondents. It would apply to the proposed action against the first respondent.”
His Honour interpreted the words of s.305 of the Act “noncompliance with
requirements of s.280” as “including the situation where a decision by WorkCover
pursuant to s.282 has not been communicated to the claimant. In other words there
is always noncompliance with s.280 until WorkCover communicates the decision
that the notice is a complying one”. [4][emphasis is mine]
[4] Canning supra at para 14
Although the decision in that case did not call for a direct consideration of the
question before me, those remarks appear to support the argument that it is the
decision of WorkCover which determines whether any notice is a “complying
notice of claim”. That decision is subject to review pursuant to s.304. But any
assessment by any other person or tribunal whether a particular notice of claim
satisfied the requirements of s.280 would not, even if favourable, result in that
particular claim being regarded as complying within the meaning of s.282.
The right therefore to commence proceedings after the end of the period of
limitation is subject to that claimant having, before the end of the limitation period,
received the WorkCover response that the claim is complying, or that it is waived,
or that successful steps have been taken pursuant to s.304 or s.305.
The claimant here has not satisfied me of any of those conditions and consequently
her application must fail.

[24]

orders

are

1.	That the application is dismissed.
2.	That the applicant pay the respondent’s costs of and incidental to the

application to be taxed.

[2000] QSC 401

1/09/2000