Handover v Consolidated Meat Group Pty Ltd

[2009] QSC 41

SUPREME COURT OF QUEENSLAND

CITATION:

Handover v Consolidated Meat Group P/L [2009] QSC 41

PARTIES:

ROBERT JAMES HANDOVER
(applicant)
v
CONSOLIDATED MEAT GROUP PTY LTD
(respondent)

FILE NO:

1373/2008

DIVISION:

Trial Division

PROCEEDING:

Originating Application

DELIVERED ON:

6 March 2009

DELIVERED AT:

Supreme Court, Brisbane

HEARING DATE:

21 January 2009

JUDGE:

Wilson J

ORDER:

That the application be dismissed with no order as to costs

CATCHWORDS:

WORKERS COMPENSATION – ALTERNATIVE RIGHTS AGAINST EMPLOYER AND/OR THIRD PARTIES AND CONSEQUENCES THEREOF – ACTIONS FOR DAMAGES AGAINST EMPLOYER – TIME FOR INSTITUTING ACTION FOR DAMAGES – where applicant was allegedly injured in the course of his employment by the respondent – where respondent is a self-insurer under the Workers Compensation and Rehabilitation Act 2003 (Qld) – where applicant failed to commence a proceeding claiming damages before expiration of the applicable limitation period – where applicant purported to invoke s 276 – whether ss 302(1)(a)(ii) or 302(1)(a)(i) was satisfied, allowing the applicant to bring a claim for damages after expiry of the limitation period

Edmunds v D Dunn Industries Pty Ltd (No 2) [2007] 2 QdR 128, cited
Narayan v S-Pak Pty Ltd [2003] 2 QdR 387, cited

Price v JF Thompson (Qld) Pty Ltd [1990] 1 QdR 278, cited

Roberts v Australia and New Zealand Banking Group Limited [2006] 1 Qd R 482, cited

Wilkinson v Stevensam Pty Ltd [2006] QCA 88, cited

WorkCover Queensland v Lucas [2003] 2 QdR 456, cited

Acts Interpretation Act 1954 (Qld), s 38
Limitation of Actions Act 1974 (Qld), s 11
Workers' Compensation and Rehabilitation Act 2003 (Qld), ss 237, 239, 242, 243, 275, 276, 278, 287, 295, 297, 298, 302

COUNSEL:

RJ Douglas SC for the applicant
KF Holyoak for the respondent

SOLICITORS:

Gouldson Legal or the applicant
Bruce Thomas Lawyers for the respondent

1. Wilson J: The applicant claims to have been injured in the course of his employment by the respondent on 3 February 2005. The respondent is a self insurer under the Workers' Compensation and Rehabilitation Act 2003 (Qld) (“the Act”).

1. This application arises out of the applicant’s failure to commence a proceeding claiming damages before the expiration of the applicable limitation period.

1. Section 237 of the Act imposes a general limitation on persons entitled to seek damages for an injury sustained by a worker. Relevantly it provides –

“237 General limitation on persons entitled to seek damages

(1)     The following are the only persons entitled to seek damages for an injury sustained by a worker —

(a) the worker, if the worker—

(i) has received a notice of assessment from the insurer for the injury; or

…

(2)     The entitlement of a worker, or a dependant of a deceased worker, to seek damages is subject to the provisions of this chapter.

…

(5)     To remove any doubt, it is declared that subsection (1) abolishes any entitlement of a person not mentioned in the subsection to seek damages for an injury sustained by a worker.”

1. On or about 14 January 2008 the respondent issued a Notice of Assessment in respect of the applicant’s injury, which was described as “mild aggravation of pre-existing degenerative disease in cervical spine (code 4102)”. The applicant’s work related impairment (WRI) from the injury was assessed as nil.

1. Section 239 provides –

“239 Worker who is required to make election to seek damages

(1)     This section applies if a worker’s notice of assessment states that —

(a) the worker’s WRI is less than 20%; or

(b) the worker has an injury that does not result in any WRI of the worker.

(2)     If, in the notice of assessment, the worker is offered a payment of lump sum compensation under chapter 3, part 10, division 3 for the injury, the worker is not entitled to both —

(a) payment of lump sum compensation for the injury; and

(b) damages for the injury.

(3)     If, in the notice of assessment, the worker is required to make an election to seek damages for the injury, the worker can not change the worker’s election —

(a) if the worker has elected to seek damages for the injury—after notice of the election is given to the insurer; or

(b) if the worker is taken, under section 189(7), to have elected to seek damages for the injury—after the worker lodges a notice of claim.”

1. The applicant rejected an offer of lump sum compensation by letter from his solicitors to the respondent’s solicitors dated 30 January 2008.

1. Pursuant to s 295 of the Act, the applicant had to comply with various requirements including giving a notice of claim for damages and accompanying documents that complied with s 275 of the Act, before he could commence a proceeding for damages. He also had to be mindful of s 11 of the Limitation of Actions Act 1974 (Qld), by which the limitation period for bringing such a proceeding would expire at midnight on Monday 4 February 2008.[1]  

   [1]Acts Interpretation Act 1954 (Qld) s 38; Price v JF Thompson (Qld) Pty Ltd [1990] 1 QdR 278.

1. Section 243 was applicable to the applicant, as he was a person within s 237(1)(a).[2] It provides –

   [2]See Workers' Compensation and Rehabilitation Act 2003 (Qld), s 242.

“243 Need for urgent proceedings

(1)     This section applies in relation to an urgent need for the claimant to start a proceeding for damages.

(2) Section 276 provides a way for the claimant to satisfy section 302(1)(a)(ii).

(3) Also, the claimant may, under section 298, seek leave to start a proceeding for damages for an injury without complying with section 295.

(4) However, if the leave mentioned in subsection (3) is given, a proceeding started by leave is stayed until the claimant complies with section 295.”

1. Section 302 of the Act provides –

“302 Alteration of period of limitation

(1) A claimant may bring a proceeding for damages for personal injury after the end of the period of limitation allowed for the Limitation of Actions Act 1974 only if —

(a)     before the end of the period of limitation —

(i) the claimant gives, or is taken to have given, a complying notice of claim; or

(ii) the claimant gives a notice of claim for which the insurer waives compliance with the requirements of section 275 with or without conditions; or

(iii) a court makes a declaration under section 297; or

(iv) a court gives leave under section 298; and

(b) the claimant complies with section 295.

(2) However, the proceeding must be brought within 60 days after a compulsory conference for the claim is held.”

1. Under s 297 of the Act the Court may make a declaration about compliance with s 275 or the remedying of non-compliance, and under s 298 it may give a claimant leave to bring a proceeding despite non-compliance with s 275. The applicant did not seek the leave of the Court to start a proceeding without complying with s 295. Instead, he purported to invoke s 276.

1. This application focuses on s 302(1)(a)(i) and (ii). The applicant seeks –

“1.A declaration that the Applicant delivered a Notice of Claim for Damages to the Respondent pursuant to section 276(2) & 3 Workers’ Compensation and Rehabilitation Act 2003 on 1^st February 2008. An order under section 287 of the Workers' Compensation & Rehabilitation Act 2003 compelling the respondent to communicate to the applicant waiver of compliance with s.275(1) of the Act, in respect of a notice given 1 February 2008, on account of it being given at a time where there was, objectively, an urgent need for the applicant to commence proceedings given the pending expiry of the limitation period on 3 February 2008;

2.A declaration that the Respondent ought to have provided a response to the Notice of Claim for Damages, pursuant to section 276(5) Workers’ Compensation and Rehabilitation Act 2003 by 6^th February 2008. Further or alternatively, an order deeming such notice to have been waived by the respondent;

…

4.necessary or appropriate for it to waive compliance under s.276(2)(b) Workers’ Compensation and Rehabilitation Act 2003. A Declaration that once so waived or deemed waived, even though after 3 February 2008, the notice invoked s.302(1)(a)(ii) of the Act;

4A.In the alternative a declaration that the notice, not being the subject of a response as required under s 278(2) of the Act within 10 days, invoked s 302(1)(a)(a) [sic] of the Act;

5.That the Respondent pay the Applicant’s costs of the application. Such further or other order or declaration as the court deems meet.

6.The respondent pays the applicant's costs of this application to be assessed on a standard basis.”[3]

[3]Amended originating application filed by leave on 21 January 2009.

1. On Wednesday 30 January 2008 the applicant's solicitors sent a Notice of Claim for Damages to the respondent by express post; it was received by the respondent on Friday 1 February 2008. The notice did not comply with s 275.

1. In his notice of claim the applicant said -

"I was injured on 03 February 2005 and began to suffer from symptoms immediately in my neck and shoulder. I first consulted a doctor on the same day in relation to said symptoms.

I have received advice that my statutory limitation period will expire on 3 February 2008. Accordingly, I have an urgent need to commence proceedings."

He went on to request the workers' compensation insurer to waive compliance with the requirements of s 275.

1. Section 276 provides –

“276 Noncompliance with s 275 and urgent proceedings

(1) The purpose of this section is to enable a claimant to avoid the need to bring an application under section 298.

(2) Without limiting section 297 or 298, if the claimant alleges an urgent need to start a proceeding for damages despite noncompliance with section 275, the claimant must, in the claimant’s notice of claim—

(a)     state the reasons for the urgency and the need to start the proceeding; and

(b) ask the insurer to waive compliance with the requirements of section 275.

…

(5) The insurer must, before the end of 3 business days after receiving the notice of claim, advise the claimant that the insurer agrees or does not agree that there is an urgent need to start a proceeding for damages.

(6) If the insurer agrees that there is an urgent need to start a proceeding for damages, the insurer may, in the advice to the claimant under subsection (5), impose the conditions the insurer considers necessary or appropriate to satisfy the insurer to waive compliance under section 278(2)(b).

(7) The claimant must comply with the conditions within a reasonable time that is agreed between the insurer and the claimant.

(8) The claimant’s agreement to comply with the conditions is taken to satisfy section 302(1)(a)(ii).”

1. The respondent received the notice of claim on Friday 1 February 2008, and forwarded it with instructions to its solicitors. Those solicitors received it at about 3.00 pm on Monday 4 February 2008, when the solicitor with carriage of the matter was absent from the office. That solicitor became aware of the instructions some time after 5.00 pm and did not appreciate that there was any particular urgency associated with the notice of claim. The next day he reviewed the file and realised that the limitation period had expired.

1. Under s 278(2) an insurer has 10 days after receiving a notice of claim in which to give the claimant written notice whether it is satisfied the notice is a complying one, and if it is not so satisfied, to identify the non-compliance and to state whether it waives compliance. If it does not give that written notice, the notice of claim is taken to be a complying one.[4]

   [4]Workers' Compensation and Rehabilitation Act 2003 (Qld), s 278(4).

1. Section 278(2)(b) which provides –

“278 Response to notice of claim

…

(2)     The insurer must, within 10 business days after receiving the notice, give the claimant written notice —

…

(b) if there is an urgent need to start a proceeding—stating that the insurer is only willing to waive compliance with the requirements if the claimant agrees to satisfy conditions imposed by the insurer under section 276”.

1. On 6 February 2008 the respondent’s solicitors wrote to the applicant’s solicitors in these terms –

“We refer to previous correspondence confirming that we act in respect of this matter.

We note that your client's Notice of Claim was received at our client's office on Friday, 1 February 2008. The 3 business days for our client to respond pursuant to Section 276 therefore expires today, 6 February 2008.

Our client does not agree that there is an urgent need to now commence proceedings. The reason there is no urgency is that the limitation period has expired and commencement of proceedings will now not serve any purpose.

It is implicit in your request that our client deal with the Notice of Claim under Section 276 that you accept that the Notice of Claim does not comply with the requirements of the Workers' Compensationand Rehabilitation Act. In any event it is manifestly clear that that is the case. In particular:

• the Notice of Claim has not been declared by your client as required under Section 275(5);

• the Notice of Claim is not accompanied by an offer of settlement that can be accepted by our client as required by Section 275(6);

• the Notice of Claim is not accompanied by the required Authority required under Section 275(7).

•     There are also inadequacies in the answers provided and the documents accompanying the Notice of Claim.

Our client also advises pursuant to Section 276(6) of the Workers' Compensation and RehabilitationAct that it is not prepared to waive the requirement for your client to give a compliant Notice of Claim within the limitation period.

In the circumstances, your client has not given a compliant Notice of Claim within the limitation period. Nor has your client obtained a waiver of the requirement to deliver a compliant Notice of Claim within the limitation period or otherwise satisfy any of the requirements of Section 305 of the Workers’ Compensation and Rehabilitation Act.

In the circumstances, our client intends to rely on a Defence under Section 11 of the Limitation ofActions Act.

With respect, it appears clear that your client's claim is statute barred and cannot be pursued. Please confirm that your client withdraws the Notice of Claim and intends to proceed no further.”

1. Senior counsel for the applicant submitted -

(a)     that "urgent need" is a matter of objective fact;[5]

[5]Transcript of proceedings on 21 January 2009, p.1.10; Applicant’s Outline, p.7.

(b)     that it is to be assessed as at the time the notice of claim is given;[6]

[6]Transcript of proceedings on 21 January 2009, p.1.11; Applicant’s Outline, p.6.

(c) that if there is a need which is urgent, but an insurer does not agree that this is so, the Court should make an order under s 287 compelling the insurer to agree;[7]

[7]Transcript of proceedings on 21 January 2009, p.1.12; Applicant’s Outline, p.9.

(d) that the period of three business days allowed to an insurer under s 276(5) is merely an outer limit, and does not derogate from the proper inquiry, which should be made as at the time the notice is delivered;[8]

[8]Transcript of proceedings on 21 January 2009, p.1.13; Applicant’s Reply Outline, pp.2 – 3.

(e) that where there is an urgent need, the insurer is obliged to waive compliance with the requirements of s 275;[9]

(f)      that if there is any discretion reposed in the insurer by these provisions, it is only as to the content of the conditions attaching to the waiver;[10]

(g)     that a claimant may bring a proceeding for damages after the expiration of the limitation period if, within the limitation period, he gave a notice of claim and if, at the time he did so, there was an objective urgent need to start a proceeding.[11]

[9]Transcript of proceedings on 21 January 2009, p.1.11; Applicant’s Outline, p.8.

[10]Transcript of proceedings on 21 January 2009, p.1.11; Applicant’s Outline, p.8.

[11]Transcript of proceedings on 21 January 2009, pp.1.13, 1.39 and 1.40; Applicant’s Outline, pp. 6 – 7 and 10.

1. I do not accept these submissions. Section 276 affords a mechanism for the consensual resolution of the dilemma confronting a claimant whose claim has not yet passed through all the necessary pre-litigation hoops when the limitation period for bringing a proceeding is about to expire. There is an alternative available - an application to the Court under s 298 for leave to commence a proceeding.

1. Assent is the essence of agreement, and the notion of the Court's ordering an insurer to agree is, with respect, nonsensical. Similarly, waiver involves voluntary action (and in some cases inaction) on the part of the insurer. If the Legislature intended that in circumstances of urgent need an applicant should be thereupon relieved of the obligation to comply with s 275, it could easily have said so. Its use of the expression "waive" and its provision for the insurer to impose conditions to which its waiver would be subject is quite inconsistent with such an intention.

1. If the assessment of urgent need were required to be made at the time the notice was delivered, the three day window for the insurer to agree would be unworkable in a case such as the present - where it expired two days after the limitation period had expired.

1. The insurer has three days in which to advise the claimant whether it agrees there is an urgent need to commence a proceeding. If the insurer does agree that there is an urgent need, it then it is open to it to waive compliance with s 275. In advising the claimant that it agrees there is an urgent need, the insurer may impose conditions which it would require to be fulfilled before waiving compliance. Simply notifying the claimant of such conditions within the three day window would not amount to a conditional waiver, because under s 278(2)(b) the insurer has 10 business days after receiving the notice of claim in which to notify the claimant that it is “only willing to waive” compliance if the claimant agrees to satisfy those conditions. The waiver occurs upon the claimant’s acceptance of those conditions.[12]

   [12]See Workers' Compensation and Rehabilitation Act 2003 (Qld), s 276(8).

1. For the limitation period to be altered under s 302(1)(a)(ii), the claimant must give a notice of claim before the end of the limitation period. In my view the insurer’s waiver of compliance with s 275, whether with or without conditions, must also occur before the end of the limitation period. Because it is waiver of compliance with requirements to be fulfilled before the commencement of litigation, this construction of s 302(1)(a)(ii) is consistent with the overall scheme of s 302(1), which is to alter the limitation period where defined events have taken place before its expiration. And it is consistent with the accepted view that the Court’s power under s 298 to give leave to commence a proceeding despite non-compliance with s 275 does not include power to give leave retrospectively to regularise a proceeding already commenced.[13]

   [13]Roberts v Australia and New Zealand Banking Group Limited [2006] 1 QdR 482; Wilkinson v Stevensam Pty Ltd [2006] QCA 88 at para 43. These cases were decided on the former WorkCover Queensland Act 1996 (Qld), but the reasoning in them is equally applicable to the Workers’ Compensation and Rehabilitation Act 2003 (Qld).

1. Under s 287 the Court may order a party to comply with provision of chapter 5 (Access to damages). But this provision does not empower the Court to order a party to re-exercise a discretion; nor does it empower the Court to review a party’s exercise of discretion.[14] Therefore, the Court cannot make an order compelling an insurer to agree that there is an urgent need for a claimant to commence a proceeding or compelling it to waive compliance with s 275. A fortiori the Court cannot do so after the limitation period has expired.

   [14]See generally Narayan v S-Pak Pty Ltd [2003] 2 QdR 387; WorkCover Queensland v Lucas [2003] 2 QdR 456.

1. Senior counsel for the applicant presented an alternative argument.

1. Section 278(2) (b) and (4) provide –

“278 Response to notice of claim

…

(2)     The insurer must, within 10 business days after receiving the notice, give the claimant written notice—

…

(b) if there is an urgent need to start a proceeding—stating that the insurer is only willing to waive compliance with the requirements if the claimant agrees to satisfy conditions imposed by the insurer under section 276;

…

(4)     If the insurer does not give the written notice mentioned in subsection (2) within 10 business days after receiving the notice of claim, the notice of claim is taken to be a complying notice of claim.”

1. He submitted –

(a)     that there was an urgent need to start a proceeding;[15]

[15]Transcript of proceedings on 21 January 2009, pp 1.7, 1.10 and 1.16; Applicant’s Outline, pp. 7 and 12.

(b) that accordingly the respondent was required (by the use of the word “must” in s 278(2)) to provide a response containing a statement to the effect that it was willing to waive compliance with s 275 if the applicant agreed to satisfy conditions it imposed under s 276;[16]

(c) that because the respondent did not do so, under s 278(4) the applicant’s notice of claim was taken to be a complying notice;[17]

(d) that s 302(1)(a)(i) was thus satisfied, allowing the applicant to bring a claim for damages after the expiration of the limitation period.[18]

[16]Transcript of proceedings on 21 January 2009, p 1.17; Applicant’s Outline, p. 12.

[17]Transcript of proceedings on 21 January 2009, p 1.17; Applicant’s Outline, p. 12.

[18]Transcript of proceedings on 21 January 2009, p 1.17; Applicant’s Outline, p. 13 – 14.

1. Section 278 must be read in the context of the other provisions of chapter 5 division 8 part 5 (Pre-court procedures), including s 276. It would be odd for s 278(2)(b) to be predicated on an objective assessment of the existence of an urgent need, while s 276 is expressly predicated on agreement between the claimant and the insurer that such a need exists. Section 278(2)(b) refers to “conditions imposed by the insurer under section 276”. The imposition of conditions is dealt with in s 276(6), which begins with the clause “If the insurer agrees that there is an urgent need to start a proceeding for damages..”. In my view s 278(2)(b) applies only where there is agreement that an urgent need exists.

1. Further, s 278(2)(b) can apply only where, under s 276(6), the insurer has imposed conditions which it would require to be fulfilled before waiving compliance. The respondent did not do so.

1. Where s 278(4) applies, its effect is to deem a notice of claim to be a complying one at the end of the 10 days allowed to the insurer to respond. On any view of the present facts, that occurred after the expiration of the limitation period. The proper construction of s 302(1)(a)(i) is, in my view, that not only must a notice of claim be given before the expiration of the limitation period, but also that notice of claim must be either a complying one or one that is, before the expiration of the limitation period, taken to be a complying one. Any other construction of s 302(1)(a)(i) would be inconsistent with overall scheme of s 302(1).

1. For these reasons I do not accept the alternative argument.

1. The application should be dismissed. I will hear the parties on costs.

Addendum

1. The respondent seeks its costs of and incidental to the application on the standard basis.

1. Section 316 of the Act provides –

“316  Principles about orders as to costs

(1) No order about costs, other than an order allowed under this section, is to be made by the court in the claimant’s proceeding.

..

(4) An order about costs for an interlocutory application may be made only if the court is satisfied that the application has been brought because of unreasonable delay by 1 of the parties.”

1. Both parties submitted, correctly in my view, that this was an interlocutory application.[19]  Thus, the Court may make an order for costs only if it is satisfied that the application was brought because of unreasonable delay by one of the parties.

   [19]See Edmunds v D Dunn Industries Pty Ltd (No 2) [2007] 2 QdR 128.

1. On behalf of the respondent it was submitted –

“…that the very nature of the application speaks of the unreasonable delay of the applicant in failing to deliver the Notice of Claim within the required time, resulting in the Claimant not taking steps pursuant to s302 of the WCRA to preserve the Claimant’s action within the limitation period, and the Applicant thereafter attempting to resurrect the claim to overcome that ‘unreasonable delay’.”[20]

[20]Respondent's Submissions on Costs, para 7.

1. The applicant instructed his solicitors to commence a claim for damages on or about 20 September 2007. Five days later his solicitors wrote to him confirming that they had accepted his instructions and enclosing a Client Agreement and blank authorities for him to sign. The signed documents were not returned to them until 5 November 2007. In the meantime there had been correspondence between him and the solicitors, and they had reminded him of the impending expiration of the limitation period. Upon receipt of the documents, the solicitors acted with reasonable promptitude in the steps they took to progress his claim.

1. In these circumstances I am not satisfied that the application was brought because of unreasonable delay by either of the parties. There can be no order as to costs.