Illingworth v Djarragun College Ltd
[2013] QDC 253
•25 JULY 2013
[2013] QDC 253
DISTRICT COURT OF QUEENSLAND
CIVIL JURISDICTION
JUDGE ROBIN QC
No 2611 of 2013
JEAN ILLINGWORTH Applicant
and
DJARRAGUN COLLEGE LIMITED Respondent
BRISBANE
12.06 PM, THURSDAY, 25 JULY 2013
JUDGMENT
CATCHWORDS
Application by worker to avoid limitations problems – notice of claim given is inadequate – applicant asserts that provisions of information sought by respondents might tend to incriminate her in criminal proceedings in which a committal date has been set – court declines to declare “compliance” contrary to the fact – leave granted to commence proceeding
Workers Compensation and Rehabilitation Act 2003 (Q) s 275, 296, 297, 302
HIS HONOUR: The court orders, pursuant to section 298 of the Workers’ Compensation and Rehabilitation Act 2003, that the applicant may start a proceeding in the court, despite the notice given in purported compliance with section 275 not being a compliant notice for purposes of the Act, on condition that within 12 months from today, or such longer or shorter time as may be fixed by an order of the court, the applicant gives a complying notice. Order that such proceeding, after being commenced, be stayed until the respondent shall agree that it may advance, or the court lifts such stay. Order that the applicant pay the respondent’s costs of the application on the standard basis, liberty to apply.
MR ROLLS: Thank you, your Honour.
HIS HONOUR: That order’s made in an unusual situation of a would-be plaintiff who faces a serious criminal charge or charges in the nature of fraud or imposition which have achieved some public notoriety, and appear to be related to her employment as the principal of the respondent college. In the criminal proceeding that she faces the next stage is a committal hearing in Cairns, commencing on the 25th of November. Considerations to do with that raise issues of the applicant potentially risking incriminating herself by providing all of the information which the Act intends go to the respondent.
The notice of claim given on her behalf under section 275 of the Act on or about 25th of June this year is thin in the extreme. It assigns as a description of the injury alleged to have been sustained: “post-traumatic stress disorder, depression, anxiety” and the degree of permanent impairment alleged to have resulted as “in our opinion, at 30 per cent”. The only other detail, apart from addresses, dates of birth, and the like, is that psychiatric injury was alleged to have been sustained as result of “(1) incompetent management of the Djarragun College board, (2) the lack of support of the board, (3) being required to undertake excessive work duties and work hours, (4) requiring the claimant to perform the roles of both CEO and principal.”
That seems to me plainly insufficient information to enable the respondent to make relevant assessments. The court accepts the urgency of the applicant’s obtaining protection against the effluxion of the limitation period, given that, at the weekend, it will expire or run out in respect of the first incident or incidents relied upon as leading to the psychiatric injury complained of.
Mr Harris, appearing for the applicant, has been unable to present any authority even remotely in point. And a Bannister v Director-General, Department of Corrective Services [2002] QSC 469 involved a gentleman who faced both disciplinary and criminal proceedings. Concern about self-incrimination in the disciplinary proceedings was a relevant consideration. Mr Rolls, for the respondent, submits that the circumstances here are different because the non-criminal matter involves the applicant as a claimant rather than a respondent.
Nonetheless, in my view, it’s appropriate for the court, against the possibility – on the present information that’s all it is – that proper presentation of the complainant’s civil claim might require the disclosure of incriminating matter to protect the civil claim. I don’t think that, at this stage, prejudice to the respondent can be
successfully asserted, but that situation may well change, depending on what elapses before the applicant considers she may safely be appropriately forthcoming in the personal injuries claim. No doubt, that is a subject that can be kept under review. The applicant, the court hears, is in custody, which I regard as a circumstance generating sympathy for her. That situation produces its own difficulties, and one would expect priority to be given to preparing the criminal matter.
Mr Harris’s approach in this application was to ask the court to proceed under section 297 of the Act, which contemplates the court declaring that notice of claim has been given under section 275 or that the claimant is taken to have remedied non-compliance. The latter type of declaration may be made on conditions, and it should be noted that the respondent has proposed conditions, including the provision within 30 days, or some other period the court might nominate now that the court is seised of the matter, of a compliant section 275 notice, which the applicant is disinclined to provide in the circumstances. It’s unattractive to the court to contemplate making declarations that notices comply when it’s comfortably satisfied that they do not.
The possibility of conditions is noted. I accept that the court may be prepared to declare compliance in advance in special circumstances where compliance at an acceptably early date may be anticipated, but here, matters are so uncertain, and the time the applicant would require is likely to be so long that the court shouldn’t act under section 297. That’s the reason why, in the result, section 298 is resorted to.
One way or another, it seems that all roads lead to Rome in this context and the Act’s procedures will have to be embarked upon before a proceeding is actually commenced. At least sections 296 and 302 will protect the applicant against limitations concerns.
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