McCullagh v WorkCover Queensland
[2001] QSC 29
•16 February 2001
SUPREME COURT OF QUEENSLAND
CITATION: McCullagh v WorkCover Queensland [2001] QSC 029 PARTIES: DARREN ROBERT McCULLAGH
(applicant)
v
WORKCOVER QUEENSLAND
(respondent)FILE NO/S: 948/01 DIVISION: Trial Division DELIVERED ON: 16 February 2001 DELIVERED AT: Brisbane HEARING DATE: 1 February 2001 JUDGE: Douglas J ORDER: 1) That the respondent respond to the said notice of claim dated 2 November 2000, under s 282 of the WorkCover Queensland Act 1996, within seven clear days of the making of this order.
(2) That there be no order as to the costs of this application.(3) That each party have liberty to apply.
CATCHWORDS: WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION - NOTICE OF ACCIDENT - DETERMINATION OF CLAIMS – PROCEDURE BEFORE HEARING – PROCEDURE – whether a s 280 notice of claim under the WorkCover Queensland Act 1996 could be held as valid, given that the form purportedly approved by the chief executive was later held to not conform with the Act. Could s 342 of the Act operate to lawfully permit confirmation with the requirements of s 280 of the Act.
WorkCover Queensland Act 1996
Scott v WorkCover Queensland 2000 QSC 414
COUNSEL: Richard Douglas SC for applicant
David North SC for respondentSOLICITORS: Shine Roche McGowan for applicant
Tutt & Quinlan for respondent
DOUGLAS J: The applicant, Darren Robert McCullagh, was injured in an accident at work which occurred on 22 July 1999. He gave a s 280 Notice of claim pursuant to the WorkCover Queensland Act 1996 (“the Act”) on 2 November 2000 which was served on WorkCover (the respondent) on 6 November 2000.
On 20 November 2000 White J delivered her judgment in Scott v WorkCover Queensland 2000 QSC 414 (20 November 2000, White J). In that case her Honour concluded:
(a) that the form purportedly approved by the chief executive of WorkCover, under s 532, for the giving by a claimant worker of a Notice of claim under s 280, which must be made in the approved form (subsection 2 therefore), did not conform with the Act and in consequence no form had been approved; and
(b) that until such a form was approved:-
“A claimant who comes within the provisions of the Act may commence proceedings in a court of law without following the path laid down in Part 5 and Part 6 of Chapter 5 of the Act”,
but not Part 2. (See Scott para 41).
Parts 5 and 6 of the Act cover the steps from the claimant worker giving a Notice of claim up to the conduct of a compulsory conference. Part 2 predicates the entitlement provisions.
The chief executive of WorkCover purported to approve a new form on 23 November 2000, three days after the decision in Scott. Therefore the window of opportunity for commencement of proceedings, short of compliance with Part 5 and Part 6 of Chapter 5, was brief.
The decision in Scott is not on appeal and the correctness of it is not disputed by either party.
The applicant was in the course of compliance with Parts 5 and 6 when the decision in Scott was delivered, but did not commence proceedings within the window. I am told by the parties that there are many others in the same circumstance. There is no limitation period problem in this case.
As put by Mr Douglas SC for the applicant “the question is whether those workers ought to be sent to Taws; must they start the process again by giving a notice of claim in the new form and march forward or, by operation of law, ought these steps taken to date be preserved to facilitate completion of the pre-litigation procedures and, if necessary, the commencement of proceedings.
The 30 day period under s 282 for a response by WorkCover to the applicant expired on 6 December 2000. On 23 January 2001 WorkCover, by its solicitors, required the applicant to give a s 280 notice of claim in the form approved on 23 November 2000.
When White J decided Scott she was not referred to the provisions of s 342 of the Act. That section provides:
Protection of persons who deal with WorkCover
(1) If a person has dealings with WorkCover –
(a) the person is entitled to make the assumptions mentioned in subsection (3); and
(b) in a proceeding about the dealings, any assertion by WorkCover that the matters that the person is entitled to assume were not correct must be disregarded.
(2) If a person has dealings with a person who has acquired or purports to have acquired, title to property from WorkCover (whether directly or indirectly) –
(a) the person is entitled to make the assumptions mentioned in subsection (3); and
(b) in a proceeding for the dealings, any assertion by WorkCover or the second person that the matters that the first person is entitled to assume were not correct must be disregarded.
(3) The assumptions that a person is, because of subsection (1) or (2), entitled to make are –
(a) that, at all relevant times, this Act has been complied with; and
(b) that a person who is held out by WorkCover to be an officer or agent of WorkCover –
(i) has been properly appointed; and
(ii) has authority to exercise the powers and perform the functions customarily exercised or performed by an officer or agent of the kind concerned; and
(c) that an officer or agent of WorkCover who has authority to issue a certified copy of a document for WorkCover has authority to warrant that the copy is a true copy; and
(d) that an officer or agent of WorkCover who has authority to issue a certified copy of a document for WorkCover has authority to warrant that the copy is a true copy; and
(e) that a document has been properly sealed by WorkCover if –
(i) it bears what appears to be an imprint of WorkCover’s seal; and
(ii) the sealing of the document appears to be authenticated by a person who, because of paragraph (b), may be assumed to be a WorkCover director or the chief executive officer; and
(f) that the directors, chief executive officer, employees and agents of WorkCover have properly performed their duties to WorkCover.
(4) However, a person is not entitled to assume a matter mentioned in subsection (3) if –
(a) the person has actual knowledge that the assumption would be incorrect; or
(b) because of the person’s connection or relationship with WorkCover, the person ought to know that the assumption would be incorrect.
(5) If, because of subsection (4), a person is not entitled to make a particular assumption –
(a) if the assumption is in relation to dealings with WorkCover – subsection (1) does not apply to any assertion by WorkCover in relation to the assumption; or
(b) if the assumption is in relation to an acquisition or purported acquisition from WorkCover of title to property – subsection (2) does not apply to any assertion by WorkCover or another person in relation to the assumption.
(6) In this section –
“officer” of WorkCover means –
(a) a WorkCover director; or
(b) the chief executive officer; or
(c) an employee of WorkCover.
It is accepted that WorkCover did not deliberately purport to approve an invalid form. In those circumstances the court should strive to search within the meaning of the 1996 Act for a means of ameliorating the expense and delay to which a claimant worker would be put by reason of the defective approval. I am of the view that s 342 provides such a remedy. Although the word “dealings” is not defined in the Act it is clear that the applicant was having “dealings” with WorkCover in the ordinary sense of the meaning of that word.
Once that is established it is clear that the applicant is entitled to make the assumptions referred to in subsection 3 of s 342 (see 342(1)). Mr Douglas SC submitted that “this would include any prospective proceeding by way of a claim for damages in which compliance with Chapter 5 would have to be proved.” He also submitted “in this respect it ought to be kept in mind that s 252, in Part 1 of Chapter 5, provides: “All the provisions of this Chapter are provisions of substantive law.”.”
There are two important assumptions in s 342(3) and they are:
“(a)that, at all relevant times, this Act has been complied with; and
…
(f)that the directors, chief executive officer, employees and agents of WorkCover have properly performed their duties to WorkCover.”
There is no suggestion that the applicant had any knowledge of any deficiency in the form prescribed by the chief executive officer. It was common knowledge and common ground that the chief executive officer did approve the old form, had it printed and distributed, and that it was designed for the purpose of being used by claimant workers when giving notice of claim under s 280.
It must be assumed that the chief executive officer, when approving such a form, carried out his or her duties with a view to ensuring that the approved form conformed with the Act. Such a view is implicit in s 532 of the Act. Therefore it follows, in my view, that as the applicant relied upon the old form as being one represented as conforming with the Act, it is not open to WorkCover, in any prospective proceedings, to contend that such a form was not conformable.
Having taken that view of the effect of s 342 of the Act it is unnecessary then to consider the alternative argument founded on waiver by WorkCover. In the event, the parties agreed that if I took the view which I have taken with respect to the effect of s 342 that agreed declarations and orders should be made.
The court declares:
1. that in respect of the notice of claim dated 2 November 2000 and given by the applicant to the respondent on or about 6 November 2000, the applicant is entitled pursuant to s 342 of the WorkCover Queensland Act 1996 to the benefit of the assumption that the proforma of the notice used by the applicant was lawfully approved for use under s 280 of the said Act;
2. that the said notice of claim dated 2 November 2000 is one to which the respondent is obliged to respond under s 282 of the WorkCover Queensland Act 1996.
The court orders:
1. That the respondent respond to the said notice of claim dated 2 November 2000, under s 282 of the WorkCover Queensland Act 1996, within seven clear days of the making of this order.
2. That there be no order as to the costs of this application.
3. That each party have liberty to apply.
The order as to costs is made pursuant to a private agreement between the parties which involve the applicant not seeking the costs of this application.
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