Phipps v Australian Leisure Group - [2006] QSC 327

SUPREME COURT OF QUEENSLAND

CITATION: Phipps v Australian Leisure Group & Anor [2006] QSC 327

PARTIES:  MARGO JOY PHIPPS
(Applicant)
v
AUSTRALIAN LEISURE & HOSPITALITY GROUP
  LTD
  (First Respondent)
WOOLWORTHS LTD
(Second Respondent)

FILE NO: S103/06
DIVISION: Trial Division

DELIVERED ON: 20 October 2006

DELIVERED AT:        Rockhampton
HEARING DATES:     18 October 2006
JUDGE:   Dutney J

ORDERS:1) Application dismissed
2) Action number S62 of 2004 in the Mackay registry be struck out

CATCHWORDS: PRACTICE – ACTION – STRIKING OUT – Where
proceedings commenced in contravention of the
Workers’ Compensation & Rehabilitation Act 2003 -
Whether non-compliance with statutory scheme
prevents worker from commencing an action.

LEGISLATION: Workers’ Compensation and Rehabilitation Act (Qld)
2003 ss. 235, 275, 298, 302

CASES:Berowra Holdings Pty Ltd v Gordon [2006] HCA 32
(15 June 2006), considered.
Roberts v Australia and New Zealand Banking Group
Ltd [2005] QCA 470 (16 December 2005), cited
Wilkinson v Stevensam Pty Ltd & Ors [2006] QCA 88
(24 March 2006), cited

COUNSEL:Mr D McMeekin SC and Mr B Harrison for the
Applicant

Mr M O’Sullivan for the Respondents

SOLICITORS: J Hamilton & Associates for the Applicant
Phillips Fox for the Respondent

The applicant (“the worker”) has applied for leave pursuant to s 298 of the Workers Compensation and Rehabilitation Act 2003 to bring proceedings in relation to injuries allegedly sustained on 14 January 2003, despite non-compliance with the requirements of s 275 of the Act.

Alternatively, the worker seeks a declaration that proceedings numbered S62/04 filed in the Mackay registry on 21 May 2004 (“the action”) are valid and effective.

The respondent (“the employer”) has cross-applied for an order striking out the action.

The relevant facts can be stated in short compass.

The worker claims to have been injured at work. She experienced sharp pain in her right neck and shoulder on 14 January 2003 while carrying cartons of beer.

In November 2003 the pain spread to her right shoulder and thereafter she developed a depressive illness.

A conditional damages certificate was sought from October 1999 on the basis that the injury was incurred as a result of activities carried out by the worker throughout the period of her employment. A conditional damages certificate was issued for the period from October 1999 until 30 June 2001 after which date the regulatory system had changed so that conditional damages certificates were no longer available.

The action was commenced on the basis of the conditional damages certificate.

Notices of Assessment were requested for the injuries but apart from the conditional damages certificate to which I have referred no certificate or Notice of Assessment had issued by January 2006.

In August 2006 the claim for an over time injury for the period leading up to 13 January 2003 was rejected on the basis of specialist orthopaedic opinion. The claim for the event on 14 January 2003 was accepted and a WRI of 18% assessed.

Therefore, the action, insofar as it relates to the event on 14 January 2003 was commenced without compliance…

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: [2006] QSC 327
Decision Date: 20 October 2006

CaseChat Overview and Summary

The case of Phipps v Australian Leisure Group & Anor involved Margo Joy Phipps, the applicant, who sought to commence proceedings against Australian Leisure & Hospitality Group Ltd and Woolworths Ltd, the respondents, for injuries allegedly sustained on 14 January 2003. Phipps sought leave to bring the proceedings in contravention of the statutory requirements under the Workers’ Compensation & Rehabilitation Act 2003. Alternatively, she sought a declaration that an action filed in the Mackay registry on 21 May 2004 was valid and effective. The respondents cross-applied for an order to strike out the action. The central legal issues involved the consequences of commencing proceedings in contravention of the pre-court procedures mandated by the Workers’ Compensation and Rehabilitation Act 2003. Specifically, the court needed to determine whether such non-compliance rendered the proceedings void and whether the court had the discretion to allow the proceedings to continue despite the breach.

The court considered the effect of non-compliance with the statutory pre-court procedures. It relied on previous decisions of the Queensland Court of Appeal in Roberts v Australia and New Zealand Banking Group Ltd and Wilkinson v Stevensam Pty Ltd & Ors, which held that failure to comply with the mandated procedures rendered any proceedings commenced in a court void. However, the High Court's decision in Berowra Holdings Pty Ltd v Gordon suggested that while proceedings commenced in breach of the statutory scheme were valid unless set aside, they could be struck out if the failure to comply was raised in response to the action. In this case, the employer applied to strike out the action, and the court found that the employer was entitled to the relief sought. The court concluded that it was not a proper exercise of discretion to allow the proceedings to continue when doing so would inevitably be futile. Therefore, the court dismissed the applicant's application and ordered the action to be struck out.

Orders