Hamey v Mac Services Group Pty Ltd

[2014] QDC 137

DISTRICT COURT OF QUEENSLAND

CITATION:

Hamey v Mac Services Group Pty Ltd & Anor [2014] QDC 137

PARTIES:

JENNIFER ALICE HAMEY
(applicant)

v

MAC SERVICES GROUP PTY LTD ACN 003657510
(respondent)

and

WORKCOVER QUEENSLAND
(respondent)

FILE NO/S:

OA 1677/2014

DIVISION:

PROCEEDING:

Originating application

ORIGINATING COURT:

District Court Brisbane

DELIVERED ON:

21 May 2014

DELIVERED AT:

Brisbane

HEARING DATE:

21 May 2014

JUDGE:

McGill DCJ

ORDER:

Leave to commence a proceeding subject to conditions as per draft.  No order as to costs.

CATCHWORDS:

EMPLOYMENT LAW  - Injury of employee – pre-litigation procedures – leave to commence proceeding because of urgent need – condition as to application for extension of limitation period imposed.

Workers’ Compensation and Rehabilitation Act 2003 s 298

Brook v Boonah Shire Council [2007] QSC 44 – considered.
Kovacic v Local Government WorkCare [2013] QSC 256 – followed.

COUNSEL:

M Horvath for the applicant

R Morton for the respondents

SOLICITORS:

1. This is an application under the Workers’ Compensation and Rehabilitation Act 2003 s 298 which arises in circumstances where a notice of claim under s 275 was given after the expiration of the limitation period. The notice was given in a situation where the applicant alleges that she has grounds to obtain an extension of the limitation period under section 31 of the Limitation of Actions Act, although, if an extension is granted because of the material fact that she relies on, the extension would be only to a date in a few days time, and therefore the necessary urgency is present.

1. There is no dispute about that, and indeed, the making of an order under s 298 is not opposed. However, the respondent seeks the imposition of certain conditions, most of which are ultimately not controversial, but one particular condition which was controversial was a requirement that the applicant file an application for an extension under s 31 of the Limitation of Actions Act on or before a particular date, to be made returnable within a particular period, specifically September this year.

1. That condition was opposed, essentially two bases: first, that the imposition of such a condition was not justified by s 298(2) of the Act because the condition was not one which was necessary or appropriate to minimise prejudice to the insurer from the claimant’s failure to comply with the requirements of s 275. It was submitted that, insofar as the insurer had suffered prejudice because of the lack of a more timely notice of claim, that prejudice could not be remedied, and the determination of the question of whether or not to extend the limitation period – which would, if granted, deprive the insurer of an absolute defence under the Limitation of Actions Act – was not something which was relevant prejudice for the purposes of s 298(2).

1. The other ground on which the condition was opposed was that WorkCover has a published policy which indicates that, ordinarily, an application under s 31 will only need to be made after a compulsory conference, presumably, a…