Johnston v The President of University of Qld Union

[2000] QSC 5

SUPREME COURT OF QUEENSLAND

CITATION:

Johnston v The President of University of Qld Union [2000] QSC 005

PARTIES:

LEONIE ELLEN ELIZABETH JOHNSTON
(Applicant/Plaintiff)
v

THE PRESIDENT OF UNIVERSITY OF QUEENSLAND UNION (an unincorporated association)

(Respondent/Defendant)

FILE NO:

2819 of 1999

DIVISION:

Trial Division

DELIVERED ON:

21 January 2000

DELIVERED AT:

Brisbane

HEARING DATE:

14 December 1999

JUDGE:

Helman J.

ORDER:

Application dismissed.

CATCHWORDS:

PROCEDURE – application for directions for the further conduct of the applicant’s claim.

Limitation of Actions Act 1974, s. 31
WorkCover Queensland Act 1996, s. 542(1)
Workers’ Compensation Act 1990, ss. 182B to 182E
Uniform Civil Procedure Rules 1999, r. 150(1)(c)

Mears v Coles Myer Ltd [1999] Q.S.C. 194
Neuss v Roche Bros. Pty Ltd [1999] Q.D.C. 249

SOLICITORS:

Mr. T. A. Allingham (Carne & Herd) for the applicant
No appearance for the respondent or for WorkCover Queensland

1. HELMAN J:  The applicant, the plaintiff in this action, seeks ‘directions for the further conduct’ of her claim.  The applicant began the action by a writ filed on 25 March 1999 in which her claim was endorsed as for ‘[d]amages for negligence and/or damages for breach of contract and/or damages for breach of statutory duty in respect of injury suffered by [her] on or about 29 March 1996 when, during the course of her employment, [she] was struck on or about her right knee by a heavy duty steel trolley left in an inappropriate position by another staff member of the defendant without any or any adequate warning to [her]’.  The respondent, designated as ‘The President of the University of Queensland Union’, was appointed to defend the applicant’s claim ‘on behalf of and for the benefit of all persons so interested’ by an order made by Derrington J. on 22 March 1999. 

1. The applicant’s action is a proceeding to which ss. 182B to 182E of the Workers’ Compensation Act 1990 applies. Section 182D(1) provides that a worker who has not received an offer of lump sum compensation under s. 132 may seek damages at law for an injury suffered after the commencement only if the board gives to the worker a certificate under that section. The commencement was 1 January 1996, and the board referred to was the Workers’ Compensation Board of Queensland, whose successor in law is WorkCover Queensland: s. 542(1) of the WorkCover Queensland Act 1996. Section 182B(2) provides that the worker must apply in the approved form to the board for a certificate. Section 182D(3) provides for the giving of an unconditional certificate, but s. 182D(4)(b) provides that the board ‘may issue’ the worker with a conditional certificate if there ‘is an urgent need to bring proceedings for damages’. Section 182D(5) provides that ‘if a conditional certificate is given, the worker may start proceedings at law for the injury, but the proceedings are stayed until the board makes the certificate unconditional’.

1. On 25 March 1999 the applicant had not received an offer of lump sum compensation and had not been issued with an unconditional certificate or been given an unconditional certificate, despite a request made on her behalf by her solicitor in a letter dated 5 March 1999.  A further request was made on 15 April 1999.  A conditional damages certificate dated 27 April 1999 was issued by WorkCover Queensland, and it gave the applicant an unconditional certificate dated 9 September 1999.  The conditional certificate included these words: ‘This certificate allows proceedings to be commenced, however, the proceedings are stayed until WorkCover makes the certificate unconditional.’  The unconditional certificate included the following: ‘This certificate allows proceedings to be commenced’.  A letter dated 9 September 1999 from WorkCover Queensland signed by a case manager and which accompanied the unconditional certificate included this: ‘Attached is a damages certificate which will allow you to continue the proceedings at law for damages’.

1. Seeking to anticipate a possible application by the respondent that her action be struck out because she began it without a requisite certificate, or a possible successful plea that any new action she might begin is statute-barred, the applicant has sought relief by way of ‘directions’. Mr Allingham, for the applicant, put before me two drafts of orders he submitted could be made by way of directions: first, an order that the applicant ‘may proceed with Supreme Court Writ No. 2819 of 1999 and the Defendant not be allowed to raise Section 182D of the Workers’ Compensation Act in defence of the action’; secondly and alternatively, an order that ‘[t]he period of limitation in respect of the Applicant’s causes of action in negligence and/or breach of contract and/or breach of statutory duty arising out of personal injuries sustained by her on or about 29 March 1996, be extended until 8 September 2000’.

1. The first proposed order sought is designed to avoid the fate that befell the plaintiff in Mears v Coles Myer Ltd [1999] Q.S.C. 194 (18 August 1999), which was a case of a claim to which ss. 182B to 182E applied. Shepherdson J. held that s. 182D(1) is a mandatory provision and legal proceedings cannot be begun when the board has not given a claimant a certificate. Since neither an unconditional certificate had been given, nor a conditional certificate issued, to the plaintiff in that action before the issue of the writ, the writ could not lawfully be issued and the action begun by it was bound to fail. His Honour accordingly ordered that the action be dismissed. Mr Allingham submitted however that it was evident from the two certificates that his client could rely on a waiver by the respondent of reliance on the provisions of s. 182D. He referred to a decision of Forde D.C.J. Neuss v Roche Bros. Pty Ltd [1999] Q.D.C. 249 (24 September 1999).

1. It is difficult to accept that the first order sought could properly be described as a direction, but in any event I conclude that the applicant must fail on this part of her application because any alleged waiver relied on must be that of the respondent, who, Mr Allingham conceded, has not been served with the writ.  There can be no question of the respondent’s waiving any requirement until he or she has been served with the originating process.  Furthermore, the order sought is, as it must be, sought in the action, and the foundation of the court’s jurisdiction to determine issues arising in an action in personam is service of the originating process on the defendant: Cairns, Australian Civil Procedure (4th ed.) p. 114.

1. Mr Allingham put before me an affidavit proving service of the application and the supporting affidavit by registered mail on the respondent and WorkCover Queensland but that does not overcome the fundamental difficulty arising from the failure to serve the originating process.  I should add that there was no appearance by or on behalf of the respondent or WorkCover Queensland at the hearing of this application.

1. In seeking the second order I have referred to, the applicant relies on s. 31 of the Limitation of Actions Act 1974. The three-year limitation period applicable to the applicant’s cause of action having now expired, she seeks, if necessary, to begin a new action which will not be subject to the threat of a plea that her cause of action is statute-barred. A defence under the Limitation of Actions Act must be specifically pleaded: rule 150(1)(c) of the Uniform Civil Procedure Rules 1999, and it may be that the certificates issued by WorkCover Queensland and the letter of 9 September 1999 indicate a preparedness not to plead such a defence, and indeed since the applicant sought, but was not issued with, a conditional certificate before the period of limitation expired such a course would be a proper one to adopt.

1. I am not persuaded, however, that the applicant should have the second order she seeks. In the first place it is not a direction in this action, in which no question of the expiration of a period of limitation has arisen. Secondly, I am not satisfied that either of the matters referred to in s. 31(2) of the Limitation of Actions Act has been established. Section 31(2) is as follows:

(2)  Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court–

(a)that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and

(b)that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;

the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.

As to the requirement of paragraph (a) Mr Allingham submitted that ‘[a]s at the date of expiration of the time limit … the [applicant] did not know and could not have known when the conditional certificate would issue or if it would issue’, and the applicant ‘should be given leave to commence new proceedings based on the damages certificate issued on 9 September 1999’. As I understand the submission it is contended that the material fact of a decisive character was the issuing of the conditional certificate, or alternatively the giving of the unconditional certificate. Neither of those events had occurred at the expiration of the period of limitation and so were not within the applicant’s means of knowledge until they occurred. When they did occur they, of course, immediately became known to her, or at least were immediately within her means of knowledge. I do not think, however, that the section can be construed to apply to an awaited future event which becomes known to, or comes within the means of knowledge of, a claimant immediately it occurs. Giving the words of the section their natural meanings, I conclude their application is confined to an event or circumstance not within the means of knowledge of a claimant for some time after its occurrence. Section 30(1)(a) supports that construction. Mr Allingham referred to no authority for his proposition. It follows that the circumstances relied on by the applicant are not within the purview of s 31. See also Mears v Coles Myer Ltd at paragraph 110.

1. Paragraph (b) of s. 31(2) is another obstacle to the applicant. There is before me nothing from which I could be satisfied that there is evidence to establish the applicant’s right of action apart from a defence founded on the expiration of the period of limitation. The only reference to the circumstances of the incident which has given rise to this action is in the endorsement on the writ.

1. The application must therefore be dismissed.