Graham v WorkCover Queensland - [2005] QDC 263

[2005] QDC 263

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 1266 of 2004

ALISTAIR GRAHAM	Applicant
and
WORKCOVER QUEENSLAND	Respondent

BRISBANE

..DATE 24/08/2005

ORDER

CATCHWORDS: WorkCover Queensland Act 1996 s 305, s 325(4) - a judge's order for leave to start a proceeding under s 305 was expressly conditional upon an extension of the limitation period being applied for and obtained within 3 months, and lodging of a Notice of Claim within four months - the latter condition was expressly "subject to any relaxation ... subsequently granted by a court" - neither condition was satisfied or attempted to be satisfied in time - held too late to seek relaxation after expiration of the time - if rule 7 of the UCPR was available, it should not be used - respondent's costs of unsuccessful application for "relaxation" refused.

HIS HONOUR: On the 14th of April 2004 Judge McGill SC made an order which was taken out a week later. By consent of the parties, it provided:

"1.That the applicant be granted leave pursuant to Section 305 of the [WorkCover Queensland Act 1996] to start proceedings against the Respondent for damages for injuries sustained during the course of employment over a period of time 10 April 2001 and 13 April 2001 ("the period") despite non-compliance with the requirements of Section 280 of the Act, subject to the Applicant applying for and being granted an extension of the limitation period for the period within three (3) months of the date of this Order.

2.Such leave is granted on the condition that subject to any relaxation from the same which may subsequently be granted by a Court, the Applicant will lodge a Notice of Claim within four (4) months of the date of this Order.

3.Subject to these Orders, each party will comply with the following:-

3.1 The relevant division under Part 2 of Chapter 5 of the Act;

3.2 The requirements of Part 5 of Chapter 5 of the Act;

3.3 Compliance with the requirements of Part 6 of Chapter 5 of the Act; and

3.4 Section 303 of the Act.
4.That the Applicant pay WorkCover Queensland's costs fixed at $500.00."

The underlying circumstance, a back injury which the applicant, Mr Graham says he sustained in about April 2001 was the subject of a workers' compensation claim completed by him around that time. Unfortunately, neither the condition set out in paragraph 2 of the order nor that set out in paragraph 3 was satisfied or even attempted to be satisfied. There was no application made for an extension of the limitation period.

The explanation for that surprising failure lies in practical problems of resources available in the legal office which inherited Mr Graham's file and a number of others and turnover of legal personnel. Mr Graham was said to have been in no way personally to blame. It was suggested that the respondent's failure to supply material on request meant that any timely Notice of Claim may have been of limited…

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.

Continue reading Graham v WorkCover Queensland

Details

AGLC: Graham v WorkCover Queensland [2005] QDC 263
Case: [2005] QDC 263
Decision Date: 24/08/2005

CaseChat Overview and Summary

In the matter of Graham v WorkCover Queensland, the applicant, Mr. Alistair Graham, sought damages from WorkCover Queensland for injuries sustained during his employment. The application was dismissed as it did not comply with the conditions set by the court in the previous order. The court found that neither the condition for an extension of the limitation period nor the condition for lodging a Notice of Claim within four months had been satisfied or attempted to be satisfied. The court concluded that the applicant's failure to comply with the conditions of the order led to the loss of the benefit of the order, and any relaxation should have been sought within the specified time frame.

The legal issues that the court had to decide involved the interpretation of the order made by Judge McGill SC and the applicability of the conditions set out in the order. The court considered whether the order could be changed and if the applicant had until the commencement of proceedings to apply for an extension of time. The court also examined the possibility of prejudice to the respondent and the potential for serious prejudice to the applicant if the application was dismissed. The court noted the discretion given to the court under rule 7 of the UCPR but concluded that the court should not exercise that discretion in this case due to the gross delay in satisfying the conditions of the order.

Orders