Goodhew v WorkCover Queensland
[2024] QSC 66
•29 April 2024
SUPREME COURT OF QUEENSLAND
CITATION:
Goodhew v WorkCover Queensland [2024] QSC 66
PARTIES:
JASON GOODHEW
(Applicant)
v
WORKCOVER QUEENSLAND
(Respondent)
FILE NO/S: 175 of 2024
269 of 2024
DIVISION:
Trial
PROCEEDING:
Application
ORIGINATING COURT: Supreme Court of Queensland
DELIVERED ON:
29 April 2024
DELIVERED AT:
Cairns
HEARING DATE:
26 April 2024
JUDGE:
Henry J
ORDERS:
1. WorkCover’s application for a declaration is dismissed.
2. Mr Goodhew’s application for orders including the fixing of the time and place for the compulsory conference is granted.
3. The parties will settle and provide my associate with a draft consent order to be signed by me in Chambers, giving effect to order 2 and, if they cannot so agree, I will hear the parties as to the terms of the order at 10am on 3 May 2024 (out of town parties having leave to appear by videolink).
4. I will hear the parties as to costs, if costs are not agreed in the meantime, at 10am on 3 May 2024.
CATCHWORDS:
WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – PRELIMINARY REQUIREMENTS – CLAIMS FOR COMPENSATION – GENERALLY – where Mr Goodview made an application for assessment of permanent impairment pursuant to 132A of Workers Compensation Rehabilitation Act – where the compulsory conference, pursuant to 289 of the Act, was set to proceed – where WorkCover indicated a day before the compulsory conference, that they could not attend as they reached the view that Mr Goodhew was not a worker under the Act – where Mr Goodhew filed an application ordering the compulsory conference proceed at a fixed time pursuant to ss 287 and 289 of the Act – where WorkCover filed a cross-application seeking a declaration that Mr Goodhew was not a worker pursuant to the Act and the Act did not apply to his damages claim in personal injuries
Workers Compensation Rehabilitation Act 2003 (Qld) ss 132A, 237, 275, 278, 279, 281, 287, 289, 292, 312, 313
COUNSEL: A Philp KC with G Houston for applicant
J McClymont KC for respondent
SOLICITORS: Shine Lawyers for applicant
Cooper Grace Ward for respondent
Mr Goodhew allegedly suffered personal injuries when passing roof sheets up to co-workers on a roof at a daycare centre in Cairns. He is presently ensnared in preliminary procedures to be complied with under the Workers Compensation Rehabilitation Act 2003 (Qld) prior to being able to bring a court proceeding for damages.
A dispute has arisen about whether he was a “worker” within the meaning of the Act and whether WorkCover should avoid attending a compulsory conference because it thinks Mr Goodhew was not a worker.
The Court need not decide whether Mr Goodhew was a worker at this preliminary stage. The compulsory conference should proceed with WorkCover attending.
WorkCover was content to reserve its rights about the “worker” issue for most of the preliminary stage
In deploying the provisions of that Act and thus contending he was a “worker”, Mr Goodhew made application for assessment of permanent impairment pursuant to s 132A of the Act to WorkCover.
His injuries were assessed and he thereafter received from WorkCover a notice of assessment of his degree of permanent impairment expressed at 22 per cent. Mr Goodhew, in turn, gave notice of his claim to WorkCover pursuant to s 275 of the Act.
WorkCover’s response to the notice of claim, pursuant to s 278, accepted that, pursuant to s 237(1)(a)(i), Mr Goodhew was entitled to seek damages. It did qualify that acceptance, however, indicating it was proceeding on a “rights reserved” basis “noting potential issues around your client’s status as a ‘worker’”.
WorkCover subsequently provided documents to Mr Goodhew’s solicitors pursuant to the cooperation provisions of s 279 of the Act. Under the same provisions, Mr Goodhew’s solicitors provided information to WorkCover in response to its request for such information, including information as to how Mr Goodhew satisfies the definition of “worker” in the circumstances of the case.
Other communication ensued, in which WorkCover noted the issue of Mr Goodhew’s status as a worker remained live. WorkCover gave written notice pursuant to s 281 that it denied liability in connection with the event the subject of the claim, on the basis Mr Goodhew was not a worker for the purposes of the Act but, rather, was a contractor. The same letter rejected Mr Goodhew’s offer to settle for an amount that was specified and, in turn, offered to settle “by paying the sum of $ nil inclusive of its statutory refunds”.
WorkCover decided its view Mr Goodhew was not a worker precluded it attending the compulsory conference
The compulsory conference pursuant to s 289 of the Act was in due course set to proceed. Then, the day before the compulsory conference, WorkCover wrote to Mr Goodhew’s solicitor announcing it was not in a position to attend the compulsory conference because, based on the most recently received information, it had reached a final view that Mr Goodhew was not a “worker” under the Act. The letter went on to state:
“Given the WCRA policy does not respond (as Mr Goodhew was not a “worker”), the writer is not in a position to attend the compulsory conference because if WorkCover is not indemnifying ICS [the purported employee], WorkCover does not have the legal capacity to make an offer as the WCRA requires”. (emphasis added)
In the wake of the compulsory conference not having proceeded, Mr Goodhew’s solicitor filed an application for the Court to, in effect, order that the compulsory conference proceed at a fixed time and date pursuant to ss 287 and 289 of the Act. A fortnight later WorkCover filed a cross-application seeking a declaration that Mr Goodhew was not a worker pursuant to the Act and that the Act did not apply to his damages claim for personal injuries.
WorkCover’s view did not preclude attendance at the compulsory conference
Resolution of the application turns, to a substantial extent, upon whether WorkCover’s view that Mr Goodhew is not a worker, within the meaning of the Act, precludes it from seeing through the Act’s pre-court procedures.
It will be recalled the reason given for WorkCover baulking at that process at the last minute was its view Mr Goodhew was not a “worker” and WorkCover therefore did not have the “legal capacity to make an offer as the WCRA requires”. This reference to legal capacity was clearly a reference to the language of s 292(2) of the Act which provides:
“If a claim is not settled at a compulsory conference, each party that has legal capacity to settle the claim must ensure that it makes a written final offer or written final offers at the conference to another or other parties at the conference that would dispose of the claim if the offer or offers were accepted.” (emphasis added)
It should immediately be observed that s 292(2)’s reference to “legal capacity” is only relevant if the claim “is not settled” at the compulsory conference. It is only if the claim is not settled at the compulsory conference that s 292(2) requires parties, with the legal capacity to settle the claim, to ensure that they make written final offers. Even if WorkCover were correct in perceiving it did not have legal capacity in the sense referred to in s 292(2), there is nothing in s 292(2) which would prevent it from settling the matter at a compulsory conference. If the subsection’s reference to legal capacity was intended to preclude settlement at the compulsory conference, the subsection would not have used the term “legal capacity” only in specific reference to the obligation to ensure an exchange of written final offers in the event the claim is not settled at the compulsory conference.
Considered in context, s 292(2)’s use of the term “legal capacity” is not a reference to WorkCover’s view, on the facts of the matter as known, that it is not liable to indemnify a potentially liable defendant. Rather, the term “legal capacity” is intended to refer to persons who, because of their personal circumstances, such as youth or intellectual impairment, lack legal capacity.
Such persons lack capacity in their own right to proffer a written final offer which, if accepted, would be legally binding.WorkCover has no such problem. It has legal capacity in the sense referred to in s 292(2).
WorkCover’s view that it has no legal obligation to Mr Goodhew because he is not a “worker” does not preclude it from attending the compulsory conference under the Act.
A declaration would be inappropriate at this early stage
That conclusion materially detracts from the force of WorkCover’s application for a declaration about whether Mr Goodhew was a worker within the meaning of the Act. It is true that such a declaration, if made prior to the compulsory conference, may have utility. That is because, if Mr Goodhew is declared to be a worker, it considerably raises the prospect that WorkCover will make a written final offer substantially greater than its former offer of “nil”.
However, the formulation of a written final offer will almost always occur without the benefit of any advance Court ruling about discrete issues in the case. Written final offers are thus necessarily informed by legal practitioners’ professional judgment about prospects on liability, the likely range of quantum and the potential risks of litigation.
It is obvious, as WorkCover’s counsel emphasised, that the Act carries potentially serious adverse consequences for a party whose final written offer does not meet the ultimate outcome in the case – see ss 312 and 313. However, it is equally obvious that the legislature intended, in imposing the pre-hearing statutory framework, to induce parties to settle cases without aid of the increased level of certainty that may accompany the stage after a claim is filed in Court. Such an increased level of certainty at that later stage may result from the exchange of pleadings and the making of disclosure.
For the Court to intervene during the pre-proceeding stage to determine a discrete factual issue is at odds with the very nature of a scheme calculated at promoting the resolution of cases without a court proceeding.
Further to these considerations, it is apparent from perusal of such factual material as has been filed before me about whether Mr Goodhew was a worker, that a substantial array of evidence would need to be considered in considering the declaration application. It is also likely that deciding whether he was a worker will require the resolution of credit issues after some cross-examination. The debate obviously presents as an issue which, if it is to be resolved by a court, is best resolved within the framework of a filed proceeding in which the parties have committed to the pleading of their respective cases and engaged in disclosure.
For all of these reasons it is preferable that the Court does not intervene by the mechanism of a declaration at this pre-proceeding stage.
Orders
It follows the application for a declaration should be dismissed and the application for orders that the Court fix the time and place for the compulsory conference be upheld. The parties should confer and identify an apt time and place to be ordered by me regarding the compulsory conference.
On the face of it, costs should follow the event but I will allow the parties an opportunity to be heard if needs be.
My orders are:
1.WorkCover’s application for a declaration is dismissed.
2.Mr Goodhew’s application for orders including the fixing of the time and place for the compulsory conference is granted.
3.The parties will settle and provide my associate with a draft consent order to be signed by me in Chambers, giving effect to order 2 and, if they cannot so agree, I will hear the parties as to the terms of the order at 10am on 3 May 2024 (out of town parties having leave to appear by videolink).
4.I will hear the parties as to costs, if costs are not agreed in the meantime, at 10am on 3 May 2024.
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