Kovacic v Local Government WorkCare - [2013] QSC 256

SUPREME COURT OF QUEENSLAND

CITATION:

Kovacic v Local Government WorkCare [2013] QSC 256

PARTIES:

DAMIEN PETER KOVACIC
(applicant)
v
LOCAL GOVERNMENT WORKCARE

(respondent)

FILE NO:

SC No 330 of 2013

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

2 September 2013 (ex tempore)

DELIVERED AT:

Cairns

HEARING DATE:

30 August 2013

JUDGE:

Henry J

ORDERS:

Upon the conditions set out in this Order, the applicant have leave pursuant to s 305 of the WorkCover Queensland Act 1996 (Qld), to commence proceedings against the respondent claiming damages for injury suffered on 14 March 2003.1.

The applicant must deliver to the respondent a Notice of Claim complying in all respects with s 280 of the WorkCover Queensland Act 1996 (Qld) within 30 days of receiving his Notice of Assessment including all documents required to be delivered with the Notice of Claim under s 280 of the WorkCover Queensland Act 1996 (Qld).2.

On or before 31 January 2014, the applicant must file an application, and any affidavit material he proposes to rely on in support, seeking to extend the limitation period, which application is to be returnable before the Court in Cairns on 28 February 2014.3.

The applicant undergo independent medical examination by Dr R Labrom, orthopaedic surgeon, on the condition that the respondent meet the applicant’s reasonable costs of attending the examination.4.

The applicant is required to deliver to the respondent within 7 days:5.

an authority directed to Centrelink authorising the release by Centrelink to the respondent all documents in its possession relating to the applicant;(a)

an authority directed to Medicare authorising the release by Medicare to the respondent of all documents in its possession relating to the applicant;(b)

an authority in the terms required under s 280 of the WorkCover Queensland Act 1996 (Qld) in favour of Queensland Local Government WorkCover Scheme.(c)

The name of the respondent is substituted with Local Government WorkCare.6.

The parties have liberty to apply on two days’ notice in writing.7.

The applicant pay the respondent’s costs of and incidental to the application to be assessed on the standard basis.8.

CATCHWORDS:

WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – PRE-LIMINARY REQUIREMENTS – where the applicant seeks leave pursuant to s 305 of the WorkCover Queensland Act 1996 (Qld) to commence a proceeding for injuries sustained despite non-compliance with s 280 and the pre-court procedures contained in Chapter 5 – whether leave should be granted

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – GENERALLY – where the respondent contends the giving of leave should be conditioned on a preliminary determination of whether the limitation period for the action should be extended pursuant to s 31 of the Limitation of Actions Act 1974 (Qld) – whether a preliminary determination is required

Limitation of Actions Act 1974 (Qld) s 31
Personal Injuries Proceedings Act 2002 (Qld) s 43
Uniform Civil Procedure Rules 1999…

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 Kovacic v Local Government WorkCare

Details

AGLC: Kovacic v Local Government WorkCare [2013] QSC 256
Case: [2013] QSC 256
Decision Date: 2 September 2013 (ex tempore)

CaseChat Overview and Summary

The applicant, Kovacic, sought leave to commence proceedings against the respondent, Local Government WorkCare, for compensation of injuries sustained in an incident occurring on 14 March 2003. Kovacic applied under section 305 of the WorkCover Queensland Act 1996 (Qld) despite not having complied with the preliminary requirements set out in section 280 of the Act, including delivering a Notice of Claim as prescribed. The respondent contended that leave should not be granted unless a preliminary determination was made regarding whether the limitation period under the Limitation of Actions Act 1974 (Qld) could be extended. The central legal issues involved whether leave could be granted under section 305 of the WorkCover Queensland Act 1996 (Qld) for non-compliance with section 280, and whether a preliminary determination of the limitation period was necessary.

The Court considered that the requirements of section 280 of the WorkCover Queensland Act 1996 (Qld) were intended to facilitate the resolution of disputes without the need for formal litigation. However, the Court recognised that exceptional circumstances might warrant the grant of leave under section 305, despite non-compliance. The Court also noted that while the limitation period under the Limitation of Actions Act 1974 (Qld) was a significant factor, it was not determinative of the application for leave. The Court determined that granting leave under section 305 could be appropriate if accompanied by conditions designed to ensure compliance with procedural requirements and fairness to the respondent. It was held that a preliminary determination regarding the limitation period was not a prerequisite to granting leave.

Accordingly, the Court granted leave to the applicant under section 305 of the WorkCover Queensland Act 1996 (Qld) to commence proceedings, subject to specific conditions. These conditions included the delivery of a Notice of Claim within 30 days, filing an application to extend the limitation period by a specified date, undergoing an independent medical examination, and delivering various authorities to release relevant documents. The Court ordered that the applicant pay the respondent's costs of the application. The orders were designed to balance the applicant's right to seek compensation with the respondent's need for procedural fairness and timely information.

Orders

Orders of the court

Upon the conditions set out in this Order, the applicant have leave pursuant to s 305 of the WorkCover Queensland Act 1996 (Qld), to commence proceedings against the respondent claiming damages for injury suffered on 14 March 2003.1.

The applicant must deliver to the respondent a Notice of Claim complying in all respects with s 280 of the WorkCover Queensland Act 1996 (Qld) within 30 days of receiving his Notice of Assessment including all documents required to be delivered with the Notice of Claim under s 280 of the WorkCover Queensland Act 1996 (Qld).2.

On or before 31 January 2014, the applicant must file an application, and any affidavit material he proposes to rely on in support, seeking to extend the limitation period, which application is to be returnable before the Court in Cairns on 28 February 2014.3.

The applicant undergo independent medical examination by Dr R Labrom, orthopaedic surgeon, on the condition that the respondent meet the applicant’s reasonable costs of attending the examination.4.

The applicant is required to deliver to the respondent within 7 days:5.

an authority directed to Centrelink authorising the release by Centrelink to the respondent all documents in its possession relating to the applicant;(a)

an authority directed to Medicare authorising the release by Medicare to the respondent of all documents in its possession relating to the applicant;(b)

an authority in the terms required under s 280 of the WorkCover Queensland Act 1996 (Qld) in favour of Queensland Local Government WorkCover Scheme.(c)

The name of the respondent is substituted with Local Government WorkCare.6.

The parties have liberty to apply on two days’ notice in writing.7.

The applicant pay the respondent’s costs of and incidental to the application to be assessed on the standard basis.8.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Kovacic v Local Government WorkCare [2013] QSC 256
PARTIES:	DAMIEN PETER KOVACIC (applicant) v LOCAL GOVERNMENT WORKCARE (respondent)
FILE NO:	SC No 330 of 2013
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	2 September 2013 (ex tempore)
DELIVERED AT:	Cairns
HEARING DATE:	30 August 2013
JUDGE:	Henry J
ORDERS:	Upon the conditions set out in this Order, the applicant have leave pursuant to s 305 of the WorkCover Queensland Act 1996 (Qld), to commence proceedings against the respondent claiming damages for injury suffered on 14 March 2003.1. The applicant must deliver to the respondent a Notice of Claim complying in all respects with s 280 of the WorkCover Queensland Act 1996 (Qld) within 30 days of receiving his Notice of Assessment including all documents required to be delivered with the Notice of Claim under s 280 of the WorkCover Queensland Act 1996 (Qld).2. On or before 31 January 2014, the applicant must file an application, and any affidavit material he proposes to rely on in support, seeking to extend the limitation period, which application is to be returnable before the Court in Cairns on 28 February 2014.3. The applicant undergo independent medical examination by Dr R Labrom, orthopaedic surgeon, on the condition that the respondent meet the applicant’s reasonable costs of attending the examination.4. The applicant is required to deliver to the respondent within 7 days:5. an authority directed to Centrelink authorising the release by Centrelink to the respondent all documents in its possession relating to the applicant;(a) an authority directed to Medicare authorising the release by Medicare to the respondent of all documents in its possession relating to the applicant;(b) *an authority in the terms required under s 280 of the WorkCover Queensland Act* 1996 (Qld) in favour of Queensland Local Government WorkCover Scheme.(c) The name of the respondent is substituted with Local Government WorkCare.6. The parties have liberty to apply on two days’ notice in writing.7. The applicant pay the respondent’s costs of and incidental to the application to be assessed on the standard basis.**8.
CATCHWORDS:	WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – PRE-LIMINARY REQUIREMENTS – where the applicant seeks leave pursuant to s 305 of the WorkCover Queensland Act 1996 (Qld) to commence a proceeding for injuries sustained despite non-compliance with s 280 and the pre-court procedures contained in Chapter 5 – whether leave should be granted LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – GENERALLY – where the respondent contends the giving of leave should be conditioned on a preliminary determination of whether the limitation period for the action should be extended pursuant to s 31 of the Limitation of Actions Act 1974 (Qld) – whether a preliminary determination is required Limitation of Actions Act 1974 (Qld) s 31 Personal Injuries Proceedings Act 2002 (Qld) s 43 Uniform Civil Procedure Rules 1999…