Semmler v Coles Group Ltd

[2008] QSC 152

SUPREME COURT OF QUEENSLAND

CITATION:

Semmler v Coles Group Ltd [2008] QSC 152

PARTIES:

THERESE IRENE SEMMLER
(Plaintiff)
v
COLES GROUP LTD
(Defendant)

FILE NO:

3125 of 2008

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

27 June 2008

DELIVERED AT:

Brisbane

HEARING DATE:

27 June 2008

JUDGE:

Daubney J

ORDER:

1.          The claim and statement of claim filed on 7 April
be struck out

2.          The plaintiff to pay the defendant’s costs of and incidental to the application to be assessed on the standard basis

CATCHWORDS:

WORKERS COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – PRELIMINARY REQUIREMENTS – where plaintiff claims damages for injuries allegedly suffered in the course of her employment – where the Workers’ Compensation and Rehabilitation Act 2003 (“WCRA”) governs the claim for damages – where the parties exchanged final offers pursuant to s 292(1) of the WCRA – where, contrary to s 292(2) of the WRCA, proceedings were commenced less than 10 business days after the exchange of offers – whether the proceeding should be struck out


Workers’ Compensation and Rehabilitation Act 2003 (Qld)

Berowra Holdings Pty Ltd v. Gordon [2006] 225 CLR 364
Phipps v. Australian Leisure and Hospitality Group Limited

v. Another [2007] QCA 130

COUNSEL:

S Given for the plaintiff
W D G Campbell for the defendant

SOLICITORS:

Sinnamon Lawyers for the plaintiff
HWL Ebbsworth for the defendant

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

DAUBNEY J

No 3125 of 2008

THERESE IRENE SEMMLER	Plaintiff
and
COLES GROUP LTD	Defendant

BRISBANE

..DATE 27/06/2008

JUDGMENT

HIS HONOUR:  In this proceeding, which was commenced by a

claim and statement of claim filed on 7 April 2008, the

plaintiff claims damages for injuries allegedly suffered in

the course of her employment with the defendant.

It is not in issue that the Workers' Compensation and

Rehabilitation Act 2003 ("WCRA") governs the plaintiff's claim

for damages.  There is also no issue before me of

non-compliance with the pre-Court procedures specified in

Chapter 5 Division 8 Part 5 of the WCRA.

On 20 May 2008 the defendant filed a conditional notice of

intention to defend contending that the proceeding is

irregular because the claim has been commenced in breach of

section 292(2) of the WCRA. Having filed that conditional

notice of intention to defend, the defendant, as required by

Uniform Civil Procedure Rules rule 144(3), has now

made application for an order under rule 16(e) that

the claim and statement of claim be set aside.

On 1 April 2008 a compulsory conference within the meaning of

that term in section 289 of the WCRA of the parties was held.

The plaintiff's claim was not settled at the compulsory

conference and, as required by section 292(1), each of the

parties made a final written offer to the other at the

conference.

Section 292(2) provides:

"The final offer must remain open for 10 business days

and proceedings must not be started while the offer

remains open."

Notwithstanding the clear terms of this statutory moratorium

on the commencement of proceedings, the plaintiff, as I have

noted, started this proceeding on 7 April 2008 and served it

on the defendant's solicitors under cover of a letter dated 11

April 2008.  Formal service on the employer was not effected

until 23 April 2008.

Mr Given of counsel, who appeared for the plaintiff, told me

from the Bar table that this premature institution of this

proceeding was a mistake on the part of his solicitor.  I

accept, of course, that those are his instructions but note

that no affidavit material has been filed on his side of the

record in this application.

In advancing the application to have the proceedings set

aside, Mr W D B Campbell of counsel eschewed any submission

that commencement of the proceeding in defiance of section

292(2) rendered the proceeding a nullity.  That approach seems

to me, with respect, to be quite right. Section 292(2) does

not extinguish rights or create new rights but rather, to

adopt the words of Gleeson CJ, Gummow, Hayne, Heydon and

Crennan JJ in Berowra Holdings Pty Ltd v. Gordon [2006] 225

C.L.R. 364 at [35], section 292(2) operates to

postpone the remedy for the common law right to initiate

proceedings in a Court of competent jurisdiction until the

prescribed 10 business day period has elapsed.  See also

Hamling v. Australian Meat Holdings Pty Ltd No 2 [2007] 1

Qd.R. 315 per Jerrard JA at [18] concerning the

provision now found at section 296 of the WCRA.

In Phipps v. Australian Leisure and Hospitality Group Limited

v. Another [2007] QCA 130 Keane JA, with whose reasons Muir J

as he then was agreed, was concerned with the proper

construction and effect of sections 237 and 250 of the WCRA.

Those sections provide:

237 General limitation on persons entitled to seek damages

(1) The following are the only persons entitled to seek damages for an injury sustained by a worker—

(a) the worker, if the worker—

(i) has received a notice of assessment from the
insurer for the injury; or

(ii) has not received a notice of assessment for the
injury, but—

A) has received a notice of assessment for any
injury resulting from the same event (the
assessed injury); and

B) for the assessed injury, the worker has a WRI of 20% or more or, under section 239, the
worker has elected to seek damages; or

(b) the worker, if the worker’s application for compensation was allowed and the injury has not been assessed for permanent impairment; or

(c) the worker, if—

(i) the worker has lodged an application, for
compensation for the injury, that is or has been the
subject of a review or appeal under chapter 13; and
(ii) the application has not been decided in or
following the review or appeal; or

(d) the worker, if the worker has not lodged an application for compensation for the injury; or

(e) a dependant of the deceased worker, if the injury results in the worker’s death.

(2) The entitlement of a worker, or a dependant of a deceased worker, to seek damages is subject to the provisions of this chapter.

(3) If a worker—

(a) is required under section 239 to make an election to seek damages for an injury; and

(b) has accepted an offer of payment of lump sum
compensation under chapter 3, part 10, division 374 for the injury;

the worker is not entitled under subsection (1)(a)(ii) to seek damages.

(4) However, subsection (3) does not prevent a worker from seeking damages under section 266.

(5) To remove any doubt, it is declared that subsection (1) abolishes any entitlement of a person not mentioned in the subsection to seek damages for an injury sustained by a worker.

.......

250 Claimant may seek damages only after being assessed

(1) The claimant may seek damages for the injury only if the insurer gives the claimant a notice of assessment.

(2) For subsection (1), the insurer must have the degree of permanent impairment assessed under chapter 3, part 10 and give the claimant a notice of assessment.

(3) Chapter 3, part 10 applies to the assessment.

In contrast to section 275 which relevantly provides that

before starting a proceeding in a Court for damages a claimant

must give a notice of claim for damages within the relevant

limitation period, his Honour considered that the language of

section 237 and section 250 is quite different to that of

section 275, the difference being between a statutory

abolition of the entitlement to seek damages at all otherwise

than in compliance with the conditions of the statute and a

statutory prohibition on commencing an action.

At [15] Keane JA said that the appellant's non-compliance with

section 237 and section 250 "meant that notwithstanding her

rights at common law she was not entitled to such damages from

the respondent."

With respect to section 275, however, Keane JA said at

[13]:

"The respondent in this case did not argue that Hamling's

case was not correctly decided.  It must therefore be

accepted that an action is not a 'nullity' and bound to

be terminated summarily as such simply because it was

commenced contrary to the statutory prohibition in

section 275 of the Act.  That is the clear effect of the

decision of this Court in Hamling's case."

Similarly in my respectful view the commencement of a

proceeding contrary to the statutory moratorium imposed by

section 292(2) does not render the proceeding a nullity.

In reliance on Hamling's case, however, Mr Campbell contended

that the proceeding having been commenced in contravention of

section 292(2) it has engaged the jurisdiction and procedural

rules of this Court and is vulnerable to an application to

strike the proceeding out.

The cases to which I have already referred clearly establish

that the Court has a discretion to terminate proceedings

commenced in contravention of statutory prohibitions in the

WCRA. As Keane JA said in Phipps' case at paragraph [12]:

"This was the discretion discussed by the High Court in

Berowra Holdings.  That discretion arose independently of

the regulatory regime contained in the Act.  The fact

that an action had been commenced contrary to the

requirements of the regulatory regime did not dictate the

result of the exercise of the discretion whether to

terminate the proceeding at least in the absence of an

express or implied prohibition in the Act upon the

claimant continuing to prosecute the irregularly

commenced claim."

Mr Campbell acknowledges both that the plaintiff had complied

with the prescribed pre-Court procedures in Chapter 5 Division

8 Part 5 and that the applicant has not sworn to any

prejudice.  He submits, however, that I should find that the

early filing of the proceeding was an abuse of process and

that the early service on the solicitors, which was not

required by either the WCRA or the UCPR, was a deliberate

tactic to put pressure on the defendant to accept the

plaintiff's offer.  He also points to the fact that the

defendant has not delayed in bringing this application and

that the limitation period for the plaintiff's claim has not

expired.

Mr Given, however, submitted that, as the impediment to

proceedings constituted by the 10 business day statutory

moratorium has been removed by effluxion of time, the existing

proceedings "are automatically regularised and there is now no

ground on which the originating process can be set aside".

I would reject that submission.  As I have already noted, the

commencement of a proceeding contrary to section 292(2) does

not render the proceeding a nullity.  Rather, if challenged it

provides an occasion for the Court to consider whether it

ought exercise its discretion to terminate the proceeding

commenced in defiance of a statutory prohibition.

The fact that the moratorium period has expired does not

ameliorate the fact of non-compliance nor, with respect, is it

relevant to invoke, as the plaintiff did in her submissions,

judicial analysis of the effect of subsequent observance of

the requirements of section 237 and section 250 such as the

observations of Keane JA in Phipps' case at [20]. His

Honour's analysis was that those provisions go to the

substantive entitlement of a claimant to recover damages.

Failure to give the notices required under those sections

means that a claimant's action is "doomed to fail" not because

of a breach of a statutory prohibition but because, in the

absence of the requisite notices, the claimant simply has no

claim.  Hence, his Honour's observation to the effect that

there is nothing in the language of those sections to suggest

that the otherwise inevitable failure could be averted by the

issuing of the necessary notice.

Similarly, the plaintiff's submission that the plaintiff's

proceedings "can simply be cured by amendment now that the 10

day prohibition has passed and the cause of action is

complete" misconceives both the effect of non-compliance with

section 292(2) and the nature of the present application.

There is no question that the plaintiff's cause of action was

complete when the proceeding was started, nor is it a question

of amending the proceeding.  An amendment cannot cure the fact

of non-compliance with section 292(2).

The question, rather, is whether the Court should exercise its

discretion to terminate proceedings commenced contrary to the

statutory prohibition.  In that regard, the plaintiff's

submission is ultimately one of utility.  The Court should not

exercise its discretion, it is said, to terminate the

proceedings because this would result in a waste of time and

money for the parties, particularly in light of the fact that

the 10 business day period has now in fact expired.

The plaintiff also sought to suggest that termination of the

proceedings now may result in some urgency in connection with

the limitation period.  Frankly I do not see how that could be

given that the relevant limitation period does not expire for

more than 6 months from now.

The purpose of section 292(2) is clear. It is to provide a

moratorium period during which each party's respective final

offer is to remain open and to give the opponent the

opportunity to give proper consideration to the offer.  That

purpose would be defeated in a number of respects if claimants

considered themselves at liberty to commence, and advertise

to their opponent the commencement of, proceedings during the

moratorium period.  It would convert the moratorium period

into a further period for negotiation or attempted

negotiation.  The credibility of "final offers" made at a

compulsory conference would be undermined if it be thought

that, despite having given a so-called "written final offer"

at a compulsory conference, an opponent might be induced to

sweeten that offer in the teeth of proceedings commenced in

contravention of section 292(2).

It is, I think, no answer to the current application to say

that the 10 business day period has now expired anyway and

that the consequence of termination of this proceeding would,

in effect, be for the same proceeding to be restarted.  That

submission could be made in virtually every case of

non-compliance with section 292(2) because by the time the

termination application comes before the Court the moratorium

period would almost inevitably have expired.

There is, in my view, much force in point of principle and

policy in the observation by Muir J in Phipps at [44]

to the effect that a discretion as to whether an action

commenced and maintained in breach of sections 237, 250 and

275 of the WCRA should be struck out normally would be

exercised in favour of the defendant.  A fortiori, in my view,

in the case of commencement of proceedings in contravention of

section 292(2) during a statutory moratorium period the

purpose of which is to concentrate the parties' minds on the

terms of the final offers and not on the adversarial

proceeding.

True it is that the proceedings can be recommenced and that

this will undoubtedly be at a cost to the plaintiff. And, of

course, it needs to be noted that the discretion to terminate

proceedings is to be exercised judicially and not punitively.

In practical terms, however, it will normally be for a

plaintiff in a case such as the present to persuade the Court

against the exercise of the discretion to terminate.  It may

be, for example, that a plaintiff can demonstrate insuperable

limitation period problems which it would face if the

particular proceedings were terminated and the Court may well

regard this as sufficient to avoid the exercise of the

discretion to terminate.  No such considerations arise in this

case, nor has the plaintiff or anyone on the plaintiff's side

of the record deposed to any circumstance which would swing

the discretionary pendulum in the plaintiff's favour.

Some might think that to order, as I propose to do, that this

proceeding be terminated is an arid exercise which, given the

plaintiff's ability immediately to commence the same

proceedings afresh, has no point.  That criticism, however,

would miss the simple point that section 292(2) has been

enacted for a purpose and the Court ought construe and apply

section 292(2) in a way which achieves that purpose rather

than in a way which would permit the purpose to be actually or

potentially subverted by the provision being ignored,

overlooked or flouted.

Accordingly, I order that the claim and statement of claim

filed on 7 April 2008 be struck out. 

...

HIS HONOUR:  The plaintiff will pay the defendant's costs of

and incidental to the proceeding including the costs of and

incidental to this application to be assessed on the standard

basis.

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