Pine v Holcim (Australia) Pty Ltd

[2013] QSC 184

SUPREME COURT OF QUEENSLAND

CITATION:

Pine v Holcim (Australia) Pty Ltd & another [2013] QSC 184

PARTIES:

SHANE ROBERT PINE
(plaintiff)

v

HOLCIM (AUSTRALIA) PTY LTD
ACN 099 732 297
(defendant)
CHANDLER MACLEOD PTY LTD
ACN 088 288 037
(interested party)

FILE NO/S:

SC No 10043 of 2011

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

Delivered ex tempore on 20 June 2013

DELIVERED AT:

Brisbane

HEARING DATE:

20 June 2013

JUDGE:

Fryberg J

ORDERS:

Chandler Macleod Pty Ltd be included as second defendant.1.   

The claim and statement of claim be consequentially amended on or before 25 June 2013.2.   

CATCHWORDS:

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – OTHER MATTERS – Workers’ compensation – Extension of time by virtue of Workers’ Compensation and Rehabilitation Act 2003 (Qld)

Limitation of Actions Act 1974 (Qld), s 11
Uniform Civil Procedure Rules 1999 (Qld), r 69(2)

Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 302

COUNSEL:

R D Green for the plaintiff  
P G De Selva (sol) for the defendant
A F Hendry (sol) for the interested party

SOLICITORS:

CMC Lawyers for the plaintiff  

DibbsBarker for the defendant

Sparke Helmore for the interested party

1. FRYBERG J: This is an application by the plaintiff to include a new party as the second defendant in a proceeding for personal injuries.  The proceeding arises out of a workplace accident which occurred in 2008.  The plaintiff commenced proceedings against what is termed the host employer, that is to say the company to which his labour had been supplied by his actual employer under a labour hire agreement.  It appears that at the time that the action was commenced, the limitation period was about to expire but it was not possible at that time to commence proceedings against his actual employer because all of the hoops under the Workplace Health and Safety Act 2011 or whatever act applied at the time had not been jumped through.  Those hoops now have been jumped through and it is common ground among the parties that there ought to be proceedings between the plaintiff and the actual employer and that those proceedings, when commenced in this Court, would not be out of time because there are provisions in the Workers’ Compensation and Rehabilitation Act 2003 which apply to permit the proceeding to be brought.

1. The only matter in issue between the parties is whether the matter may be dealt with by including the actual employer as a defendant in the existing action or whether the plaintiff is obliged to commence a fresh action against the employer and then apply to the court for the consolidation of the two actions. That course is urged on behalf of the proposed new defendant, that is to say the actual employer. The argument is based on the proposition that in rule 69(2) of the Uniform Civil Procedure Rules 1999 it is provided that, “the court must not include or substitute a party after the end of a limitation period” unless certain matters apply. I am prepared to assume that none of those matters apply (contrary to an alternative submission developed by the plaintiff). The period of limitation provided under the Limitation of Actions Act 1974 for the commencement of an action for personal injuries is by section 11 of that Act a period of three years.

1. However section 302 of the Workers’ Compensation and Rehabilitation Act 2003 provides, “A claimant may bring a proceeding for damages for personal injury after the end of the period of limitation allowed for bringing a proceeding for damages for personal injury under the Limitation of Actions Act 1974 ... if ...”. The relevant conditions have been complied with in this case so that the proceeding may be brought. However the point made is that while the section allows the bringing of a proceeding it does not operate to extend the period of limitation. It is submitted that a period of limitation has expired and that means that rule 69 cannot be applied by reason of the provisions of the chapeau of sub-rule 2.

1. In my judgment the effect of section 302 is to extend the period provided under the Limitation of Actions Act 1974. Indeed the heading of section 302 is “Alteration of period of limitation” and that heading is part of the Act as provided by section 35C of the Acts Interpretation Act 1954. The substance of the section is to permit the proceeding to be brought after the period prescribed in the Limitation of Actions Act 1974. In effect, that extends the period in the Act. That is the evident intention of the section and moreover it is the sensible and practical outcome in the circumstances. To construe rule 69(2) as applying if any period of limitation had expired while disregarding any extensions would, in my view, be a nonsense. It would equally be inconsistent with the spirit of the rules for the plaintiff to be required to commence a second proceeding and incur a second filing fee when it would be quite unnecessary for that to happen and when the proceedings were intended to be consolidated.

1. There should therefore be an order that Chandler Macleod Pty Ltd be included as second defendant and that the claim and statement of claim be consequentially amended on or before 25 June.