Roberts v Australia and New Zealand Banking Group Limited

[2005] QDC 162

DISTRICT COURT OF QUEENSLAND

CITATION:

Roberts v Australia and New Zealand Banking Group Limited [2005] QDC 162

PARTIES:

HEATHER JOY ROBERTS
Plaintiff
v
AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED ACN 005 357 522
Defendant

FILE NO:

D 1625/05

DIVISION:

PROCEEDING:

Claim

ORIGINATING COURT:

Brisbane

DELIVERED ON:

14 June 2005

DELIVERED AT:

Brisbane

HEARING DATE:

12 May 2005

JUDGE:

Skoien SJDC

ORDER:

Leave to plaintiff to commence proceedings nunc pro tunc.

CATCHWORDS:

Action by employee against self insurer; erroneous issue of Conditional Damages Certificate to allow action to commence; Conditional Damages Certificate provisions previously repealed; whether waiver/estoppel; ss. 280A & 305 of WorkCover (Queensland) Act 1996.

COUNSEL:

Mr J.W. Lee for plaintiff

Mr M.T. O’Sullivan for defendant

SOLICITORS:

Keith Scott & Associates for plaintiff

Tutt Down McKeering for defendant

The Action

1. The plaintiff commenced proceedings in the District Court at Beenleigh on 13 July 2004 claiming damages for personal injuries being psychological injury sustained by her as a result of the conduct of a co-worker between August 2001 and August 2002.  She alleges that the defendant (“ANZ”) her employer, failed in its duty to her to prevent or stop that conduct.  The matter is now before me to determine whether the proceedings were validly commenced.

History

1. ANZ is a self-insurer under the WorkCover Queensland Act 1996 (“WCA”). Under Part 5 of Chapter 2 of WCA certain employers may obtain a licence to provide their own accident insurance for their workers.  ANZ holds such a licence.

1. Until 1 July, 2001 s.262 of WCA was:

“262.(1) The injury sustained by the claimant must be assessed in the way provided for under chapter 3, part 9.

(2)         The claimant can not seek damages until WorkCover gives the claimant a notice of assessment and the claimant has complied with the requirement so chapter 3, part 9, division 3.

(3)         However, WorkCover may give the claimant a conditional damages certificate if there is an urgent need to bring proceedings for damages and the claimants permanent impairment has not been assessed or agree.

(4)         If a conditional certificate is given, the claimant may start proceedings for damages for the injury, but the proceedings are stayed until WorkCover makes the certificate unconditional and the claimant complies with parts 5 and 6.

(5)         WorkCover must make the certificate unconditional when the claimant has been assessed and has been given a notice of assessment.”

1. Section 119 of WCA has at all material times given to self insurers the “functions and powers” of WorkCover under various specified provisions of the Act, including, materially, s.262. So until 1 July 2001 a self-insurer (including ANZ) could, if urgent need was shown, give a conditional damages certificate (“CDC”) to allow proceedings to commence by virtue of s.262(4).

1. By letter dated 16 April 2004 the solicitors for the plaintiff requested a CDC in these terms:

“Further the injury in this matter occurred over a period of time and we wish to issue proceedings to protect the time limit.  Please provide a Conditional Damages Certificate to enable us to do so.”

1. By letter dated 30 April 2004 ANZ acknowledged the request for a CDC and said:

“In order to correctly identify the true date of injury for the requested CDC, would you please provide us with the point in time at which your client believes the injury commenced.  In the meantime, please do not hesitate to contact this office if you need any further information.”

1. On 11 May 2004 the solicitors for the plaintiff advised that she believed her injuries commenced in August 2001.

1. Under cover of a letter dated 8 June 2004 ANZ provided the plaintiff with a CDC issued on 20 May 2004.  The document set out the following:

CONDITIONAL DAMAGES CERTIFICATE

Full Name of Worker:              Heather Joy ROBERTS
Full Name of Applicant:          Keith Scott & Associates Solicitors
(if different to above)
Statutory Claim Number:        00254
Date of Event Causing injury:  August 2001

Date of Issue:  20 May 2004

Permanent Impairment from Injury

The Conditional Damages Certificate is issued, pursuant to Section 273H of the Worker’s Compensation and Rehabilitation Act 2003 on the basis that there is an urgent need to bring proceedings for damages.

A Conditional Damages Certificate is issued when ANZ Bank is not satisfied that:

·     The person was a worker when the injury was sustained; or

·     The worker has sustained an injury within the terms of the Act; or

·     The worker’s degree of Permanent Impairment has been assessed in the way mentioned for the injury under Chapter 3, Part 9 of the Act.

This certificate allows proceedings to be commenced, however, the proceedings are stayed until the above matters are resolved.  When the above matters have been resolved, ANZ Bank may issue a Unconditional Damages Certificate, which will allow you to continue proceedings.

Please note that you must comply with Chapter 5 of the Act to continue proceedings.

Issued by:        Rob Fedrick
Signature:        (sgd)
Position:           ANZ Claims Manager
Date:                8/6/04

1. The letter of 8 June was in these terms:

Dear Mr Scott,

RE:      Workers Compensation and Rehabilitation Act 2003
             Heather ROBERTS              Claim No.:   00254
             Your Reference:  KDS:AK:31393

I refer to the above matter and in particular your letters of 16 April 2004 and 11 May 2004.  As requested please find enclosed a Conditional Damages certificate in respect of the above claim.

It is noted that you have requested copies of “any documents” in relation to the above matter.  A call was placed with your office on 18 May 2004 seeking clarification of the specific documents you are requesting, however to ate your reply has not been received by this office.  To avoid any unnecessary delays with this matter would you please provide written clarification if you are request copies of specific documents of it you a seeking a complete copy of the above file.  Please note that we will take no further action in respect of this matter until you have provided clarification.

In the meantime, please do not hesitate to contact this office if you need any further information.

Yours sincerely,

Rob Fedrick
Workers Compensation Manager
Workers Compensation Qld

Enclosed

1. Prior to 1 July 2001, a “worker” qualifying under s 253(1) of WCA was entitled to seek damages for an injury sustained by the worker. But s. 262(2) (applied to prevent the action commencing until the worker had received from WorkCover a notice of assessment and had complied with the specified requirements of WCA. In cases of urgency, a CDC could be obtained to allow litigation to commence (s.262(3)) but the litigation could not be pursued until the statutory requirements referred to in s.262(4) and (5) had been attended to.

1. However on 1 July 2001 an amending Act to WCA made important changes to the procedures available when there was a need to bring proceedings urgently.  It omitted the CDC provisions and replaced them with alternative procedures.  A worker who had not had injuries assessed by WorkCover or the self-insurer could use the provisions of s.280A or s.305.  Both provisions applied to self insurers (s.119(1)(a)(iii)), a provision to which I will refer later.

1. So in the present case, the solicitors for the plaintiff, in requesting a CDC to enable proceedings to be commenced within time were in error because WCA at that time provided for no such certificate to be issued whether by ANZ or WorkCover itself.

1. If the plaintiff’s solicitors fell into error then so did ANZ in issuing the CDC. Furthermore the certificate expressly purported to have been issued pursuant to s.273H of the Workers Compensation and Rehabilitation Act 2003. That Act had no application to the plaintiff’s claim as it related only to injuries that occurred after 1 July 2003. Nor did it contain a s.273H. A section numbered 273H appears in WCA from 1 July 2001 but that section does not touch upon any relevant matters.

1. Obviously in ignorance of the errors the plaintiff’s solicitors, in purported reliance on the CDC, commenced court proceedings by filing a Claim and Statement of Claim on 13 July 2004.  No defence has been filed to this claim.

1. Solicitors for ANZ contacted the plaintiff’s solicitors on 5 October 2004 to advise of their representation.  There was communication between the two firms, with no hint that a difficulty existed, until, it seems, early March 2005 when the solicitors for ANZ wrote adverting to the repeal of the CDC provisions and asserting that as the mandatory pre-litigation notice had not been given the litigation had been invalidly commenced and was a nullity.  If that is so and the plaintiff is forced to start proceedings anew, she obviously faces the prospect of ANZ raising the provisions of the Limitation Act 1974 to defend the claim.

1. I note with dismay that the solicitor for ANZ has sworn to the fact that on or about 15 October 2004 he advised ANZ of the error which had been made.  That was about 6 months before, on the material before me, the plaintiff’s solicitors were told of the error.  In cases such as this any lapse of time is important, possibly critical.

The Applications

1. Two applications are before me:

(a)     the plaintiff’s application filed on 22 April 2005 seeking a declaration that the proceedings are valid;

(b)     ANZ’s application filed on 10 May 2005 for an order that the action be struck out.

1. The argument advanced by Mr Lee of counsel for the plaintiff is that the issue of the CDC should be taken as a waiver by ANZ of the requirements of WCA which operated to prevent her right to issue proceedings until they had been satisfied.  Alternatively the argument is that the plaintiff accepted the CDC at face value (importantly the final two paragraphs of it) and acted on the faith of it.  In so acting she suffered the detriment of allowing time to run past the three years laid down by the Limitation Act and therefore ANZ is estoppel from raising the Limitation Act.  The argument for ANZ is simply that, the mandatory pre-action provisions of WCA not having been complied with, the current action is a nullity.

1. Mr Lee sought to rely on the provisions of s.342 of WCA which set out various assumptions (as to the propriety of actions by officers of WorkCover) which a person dealing with WorkCover is entitled to make. Regrettably for the plaintiff s.342 does not appear in the list of provisions of WCA relating to WorkCover’s various functions and powers which are specifically made applicable to self insurers. See s.119. Where a statute has expressly extended certain powers and functions of a primary entity to a secondary entity I see no warrant to infer the extension to the secondary entity of unspecified powers and functions. No authority was put before me to suggest otherwise.

1. Section 253 of WCA defines exhaustively the persons who are qualified to seek damages.  There was no suggestion that the plaintiff fails to qualify.  Then s.280 prescribes the comprehensive details which the claimant must set out in a notice to (here the self-insurer), within the limitation period before proceedings for damages may be commenced.  Clearly in this case that was not done.

1. Section 280A provides relief to claimants who, in matters of urgency, do not comply with s.280.  It is:

“280A Noncompliance with s 280 and urgent proceedings

(1)The purpose of this section is to enable a claimant to avoid the need to bring an application under section 305.

(2)Without limiting section 304 or 305, if the claimant alleges an urgent need to start a proceeding for damages despite non-compliance with section 280, the claimant must, in the claimant’s notice of claim:

(a)     state the reasons for the urgency and the need to start the proceeding; and

(b)     ask WorkCover to waive compliance with the requirements of section 280.

(3)    The claimant’s lawyer may sign the notice of claim on the claimant’s behalf if it is not reasonably practicable for the claimant to do so.

(4)    The claimant’s notice of claim may be given by fax in the way provided for under a regulation.

(5)    WorkCover must, before the end of 3 business days after receiving the notice of claim, advise the claimant that WorkCover agrees or does not agree that there is an urgent need to start a proceeding for damages.

(6)    If WorkCover agrees that there is an urgent need to start a proceeding for damages, WorkCover may, in the advice to the claimant under subsection (5), impose the conditions WorkCover considers necessary or appropriate to satisfy WorkCover to waive compliance under section 282(2)(b).

(7)    The claimant must comply with the conditions within a reasonable time that is agreed between WorkCover and the claimant.

(8)    The claimant’s agreement to comply with the conditions is taken to satisfy section308(1)(a)(ii).”

1. The plaintiff’s solicitors’ request (see para [5]) cannot be said strictly to comply with the requirements of s.280A.  But it does raise the Limitation Act and the letter of 11 May 2005 (para [7]) identifies the date of the alleged injury.  The time remaining under the Limitation Act was then less than three months, so the requirements of s.280A(2)(a) were, I consider, adequately covered.  There was no express request to waive the requirements of s.280 but it is patent that the request was to allow action to begin notwithstanding the plaintiff’s failure to comply with the pre-action requirements of s.280 of WCA.

1. Section 280A(5) and (6) obviously allows WorkCover to decide whether it is content to treat the claimant’s “notice” as sufficient. Had it been WorkCover rather than a self insurer which wrote the letter (para [9]) and issued the CDC, containing especially the final two paragraphs, I consider that a clear waiver of statutory formalities would be established. And s.119(1)(a)(iii) gives to ANZ the same functions and powers as those of WorkCover under s.280A. If necessary I would hold that ANZ has waived the statutory formalities.

1. But the path is much clearer if one has reference to s.305 which is:

“305  Court to have given leave despite non-compliance

(1)     Subject to section 303, the claimant may start the proceeding if the court, on application by the claimant, gives leave to bring the proceeding despite noncompliance with the requirements of section 280.

(2)     The order giving leave to bring the proceeding may be made on conditions the court considers necessary or appropriate to minimise prejudice to WorkCover from the claimant’s failure to comply with the requirements of section 280.”

1. Section 303 is not material to this consideration because it expressly allows a proceeding to commence if a court has made an order under s.305.

1. Section 305(1) imposes no restraint upon the Court’s power.  How, then, should the power be exercised?  It seems to me that the basic premise should be that of fairness and justice.  In this case it lies in favour of the making of the order for a number of reasons:

1.          The alleged injury was sustained at work in an ANZ Branch, between August 2001 and August 2002.

2.          The plaintiff applied formally for compensation on 20 August 2002, that is, promptly upon the alleged sustaining of the injury.

3.          There are a number of medical reports available detailing her complaints.  These provide a valuable record, available to ANZ.

4.          So ANZ has, from an early date, been aware of the plaintiff’s allegations and, under WCA, has had wide powers of investigation (e.g. s.162).

5.          The plaintiff’s solicitors’ error was a patent one and in essence was one of form, not substance, because it has not resulted in the withholding of any information or displayed any lack of co-operation with ANZ.  Indeed if she is permitted to commence the proceedings they can be stayed until all statutory pre-litigation requirements are fulfilled.

6.          It would be unconscionable to allow ANZ, having compounded the error, to resile from its acceptance of the plaintiff’s right to commence proceedings.  Had ANZ immediately pointed out the error the plaintiff would have had time to correct it before the limitation period expired.

7. Section 279A sets out the over-riding obligations of parties and emphasises the avoidance of “undue delay, expense and technicality to facilitate the object of Part 5 of Chapter 5 of WCA.  That is said to be (s.279) “to facilitate the just and expeditious resolution of the real issues in a claim for damages at a minimum of expense”.

1. Mr O’Sullivan referred me to s. 252(2) which provides that all of the provisions of Chapter 5 (ss.250-329) are provisions of substantive law. That cannot mean, however, that s.305 (part of Chapter 5) does not mean what it says. In my opinion it simply emphasises that if proceedings are commenced under s.305, they remain subject to the plaintiff complying with the applicable substantive provisions of Chapter 5.

1. I was also referred by Mr O’Sullivan to Bonser v Melnacis (2002) 1 Qd.R.1 at para [4] where the Court of appeal held that WCA sets up exclusively the right of workers to sue for damages for personal injury.  That is of course accepted, but the Court did not hold that the power under s.305 could be exercised in a proper case.

Conclusion

1. In the plaintiff’s application I think the proper order, under s.305 is that the plaintiff be deemed to have had leave to file these proceedings in the District Court at Beenleigh on 13 July 2004.

1. I give the parties liberty to apply for any further or consequential order.

1. I dismiss the defendant’s application.