Lentini v Redland Shire Council - [2000] QDC 217

DISTRICT COURT OF QUEENSLAND

CITATION: Lentini v Redland Shire Council & Ors [2000] QDC 217

PARTIES:
FRANCESCO LENTINI (Plaintiff)

v.

REDLAND SHIRE COUNCIL (First Defendant)

COVECORP CONSTRUCTIONS PTY LTD (Second Defendant)

EVEREADY CONCRETE CONTRACTORS PTY LTD (Third Defendant)

FILE NO: D85 of 1999

DELIVERED ON:

DELIVERED AT: BRISBANE

HEARING DATES:

JUDGE: WOLFE C.J.D.C.

ORDER: The defendants application is dismissed.

CATCHWORDS: PROCEDURE – DEFENDANTS’ APPLICATION FOR SUMMARY JUDGMENT – injured employee did not obtain a certificate pursuant to s.182D of the Workers’ Compensation Act 1990 prior to filing the plaint – whether certificate required – whether WorkCover had made an offer of lump sum compensation – whether WorkCover had waived obligation to obtain a certificate.

COUNSEL:

SOLICITORS:

The defendants applied pursuant to UCPR 293 for summary judgment against the plaintiff. The plaintiff had filed the plaint in this action prior to obtaining a certificate pursuant to s.182D of the Workers’ Compensation Act 1990 (as amended from 1 January 1996), which was repealed by the WorkCover Queensland Act 1996. The plaintiff’s rights to maintain the action are governed by the provisions of the 1990 Act. The defendant and WorkCover contend that the plaintiff’s action is barred by operation of s.182D of the 1990 Act (“the Act”) which relevantly provides:

“182D(1) 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 the worker a certificate under this section.”

The defendants applied for summary judgment relying on the s. 182D issue which they had raised in their pleadings or in the alternative an order pursuant to UCPR 482 for that issue to be determined as a separate issue together with a consequential order that the action be struck out. It may be noted that the defendants did not raise the s.182D issue until after the limitation period had expired. Any question of waiver apart, it was common ground that if the plaintiff had not received a lump sum offer pursuant to s.132 or a s.182D certificate prior to the filing of the plaint, then the plaint must be struck out: see Mears v. Coles Myer Ltd. [1999] QSC 194.

By his cross application, the plaintiff sought orders pursuant to UCPR 162 striking out the paragraph of the third defendant’s defence which pleaded the s.182D issue. At the hearing the plaintiff did not press his alternative application for an order extending the limitation period pursuant to s.31(2) of the Limitations of Actions Act 1974, in light of Shepherdson J’s decision in Mears v. Coles Myer Ltd.

As the matter was argued there are two issues for determination. Firstly, whether the plaintiff received a lump sum offer pursuant to s.132 of the Workers’ Compensation Act 1990, and if the plaintiff had not received this offer whether WorkCover had, in the circumstances, waived the plaintiff’s obligation to obtain a certificate pursuant to s.182D of the 1990 Act.

The plaintiff was born on 3 February…

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.

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Details

Case: [2000] QDC 217
Decision Date: 07 June 2000

CaseChat Overview and Summary

Francesco Lentini initiated proceedings against the Redland Shire Council, Covecorp Constructions Pty Ltd, and Eveready Concrete Contractors Pty Ltd. Lentini claimed damages for personal injury allegedly caused by the defendants' negligence or breach of statutory duty. The defendants applied for summary judgment, arguing that Lentini did not obtain a certificate under s.182D of the Workers’ Compensation Act 1990 before filing the plaint, which they claimed was a requirement to maintain the action. The court had to determine whether Lentini had received a lump sum offer pursuant to s.132 of the Workers’ Compensation Act 1990 and if not, whether WorkCover had waived the plaintiff's obligation to obtain a certificate under s.182D of the 1990 Act. The court found that Lentini had received an offer of lump sum compensation, which he had rejected, and that he had the right to seek damages at law. However, the court also found that Lentini's action was barred because he did not obtain a certificate under s.182D of the 1990 Act before filing the plaint. The court dismissed the defendants' application for summary judgment.

Orders