Wilkinson v Rockdrill Contractors Pty Ltd and Workers Compensation Board

[1996] QCA 4

IN THE COURT OF APPEAL	[1996] QCA 004
SUPREME COURT OF QUEENSLAND

Appeal No. 108 of 1995.

Brisbane

[Wilkinson v. Rockdril Contractors P/L & Anor.]

BEFORE:

ROBIN DAVID WILKINSON

(Plaintiff) Appellant

AND:

ROCKDRIL CONTRACTORS PTY LTD

(First Defendant) First Respondent

AND:

WORKERS’ COMPENSATION BOARD

OF QUEENSLAND

(Defendant by Election) Second Respondent

___________________________________________________________________

Davies J.A.
McPherson J.A.

Pincus J.A.

___________________________________________________________________

Judgment delivered 09/02/1996

Joint reasons for judgment of Pincus J.A. and Davies J.A., separate concurring reasons
of McPherson J.A.
___________________________________________________________________

APPEAL DISMISSED WITH COSTS BEING COSTS OF FIRST RESPONDENT ONLY ___________________________________________________________________

CATCHWORDS: PERSONAL INJURY - worker’s compensation - affidavit of service with respect to service on Workers’ Compensation Board - service on Workers’ Compensation Board before further steps - statement of claim a nullity - breach of procedural requirements - service of writ - amendments to statement of claim - amendments without leave - irregularity in amending without leave - waiver - relation back - treated as included in original statement of claim - add new cause of action.

Supreme Court Rules O. 93 r. 17, O. 32 r.1, O.24 r. 1
Workers’ Compensation Act 1916 - s. 9A, 9
Workers’ Compensation Act 1990
Limitation of Actions Act 1974 - s. 11
Motor Vehicles Insurance Regulations 1937 - reg. 9
Symes v. Ryan [1943] Q.W.N. 40
Jones v. Sexton [1941] Q.W.N. 25
Moore v. Downey [1955] Q.W.N. 34
Hatton v. Beaumont (1978) 52 A.L.J.R. 589
Adam v. Shiavon [1953] 1 Qd.R. 1
Pianta v. BHP Australia Coal Ltd (C.A. No. 230 of 1994,
8/3/1995, unreported)

Counsel:	Dr C G Jensen for the appellant. Mr R R Douglas QC for the first respondent. Mr J Griffin QC for the second respondent.
Solicitors:	Gilshenan & Luton for the appellant. Minters for the first respondent. Hunt & Hunt for the second respondent.

Hearing date:30/11/1995

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 108 of 1995.

Brisbane

Before Davies J.A.
McPherson J.A.
Pincus J.A.

[Wilkinson v. Rockdril Contractors P/L & Anor.]

BEFORE:

ROBIN DAVID WILKINSON

(Plaintiff) Appellant

AND:

ROCKDRIL CONTRACTORS PTY LTD

(First Defendant) First Respondent

AND:

WORKERS’ COMPENSATION BOARD

OF QUEENSLAND

(Defendant by Election) Second Respondent

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the 9th day of February 1996

I agree with the orders proposed by Pincus and Davies JJ.A. for the reasons which

they have given.

JOINT REASONS FOR JUDGMENT OF PINCUS J.A. AND DAVIES J.A.

Judgment delivered 09/02/1996

This is an appeal from a judgment of the Supreme Court dismissing an application for directions made by the plaintiff, now appellant. The problems with which the Court is concerned are related to the effect of s. 9A of the Workers’ Compensation Act 1916 ("the

Act"). That statute was repealed by the Workers’ Compensation Act 1990 whose

operative provisions commenced on 1 January 1991, after the date of the last of the

events which have to be considered.

It appears to be convenient to explain the issues which were raised, in the course

of a discussion of the history of the proceedings. The effect of the judgment below was

to refuse the plaintiff relief which might have avoided the adverse consequences of failure

to comply with procedural requirements of s. 9A.

On 26 May 1989 the plaintiff caused a writ to be issued in the Supreme Court of

Queensland, the endorsement on which claimed "damages for negligence of the

defendant at Charters Towers in the State of Queensland in or about June 1986". The

defendant named in the writ is Rockdril Contractors Pty Ltd ("the employer"). Although

the endorsement does not say so, the damages sought to be recovered are in fact for

personal injury within the meaning of s. 11 of the Limitation of Actions Act 1974, which

provision establishes a three year time limit for such suits. On 20 June 1989 the employer

entered an appearance in the action and a statement of claim was delivered on 18 August

1989, setting up a case that the plaintiff was injured in the course of his employment with

the employer at Charters Towers and that the injury was caused by the employer’s

negligence and by breach of its contractual obligation to take reasonable care for the

plaintiff’s safety. The statement of claim alleged that a copy of the writ had been served

on the Workers’ Compensation Board of Queensland on 17 August 1989 and an affidavit

deposing to such service filed before any further step was taken; as will appear, those

allegations were incorrect.

Section 9A(1) deals with injuries "in respect whereof a worker is entitled under

subsection (1) or (2) of section 9 of this Act to receive compensation from the Workers’

Compensation Fund". Section 9A(2) reads, in part, as follows:

"Where in respect of an injury to which subsection (1) of this section applies, a worker claims, by or in any action or other proceedings whatsoever in any Court, against his employer any sum for damages which the worker alleges the employer is legally liable to pay in respect of such injury, then the worker shall serve upon the Board not later than 28 days after service thereof by him on the employer or person referred to in section 8(8), a copy of the writ of summons, summons, statement of claim, notice, order, counter-claim or other process by which that claim is made and shall before any other step is taken by him in such action or other proceedings file in the Court concerned an affidavit as to such service.

The Board may at any time during the proceedings taken or had to enforce the claim elect to be joined with the employer by filing in the Court concerned a notice in writing to that effect."

One of the requirements of this provision is that before "any other step" is taken,

an affidavit of service of the document making the claim in question must be filed in the

court. The statement of claim delivered on 18 August 1989 was, it is common ground,

delivered before service was effected on the Board. It is also common ground that

therefore the delivery of the statement of claim was a nullity.

The effect of the corresponding provision in regulation 9 of The Motor Vehicles

Insurance Regulations of 1937 has been considered in a number of reported cases. In

the first of these, Jones v. Sexton [1941] Q.W.N. 25, the report includes no express or

implicit reasons, so the case is of no authority. In Symes v. Ryan [1943] Q.W.N. 40, steps

were taken before service on the licensed insurer and those steps were held to be

nullities. In the third case, Moore v. Downey [1955] Q.W.N. 34, a summons for directions filed before an affidavit of service on the licensed insurer was objected to as being

"irregular". The matter was not argued and the judge said "I consider I have no power to

dispense with the filing of the affidavit of service under regulation 9, and therefore, dismiss

the summons". Nothing was said as to whether the summons was dismissed on the basis

that it was irregular, or on the basis that it was a nullity.

The only decision, then, which is reported and appears to bear on the question

whether provisions of this type make subsequent proceedings null is that of a single judge,

in Symes v. Ryan; there, the conclusion was reached that the steps were taken were

nullities, but no explanation for that conclusion is to be found in the report. Undoubtedly,

in many unreported cases the law has been assumed to be as stated in 1943.

There are numerous reported decisions in which the effect of breach of procedural

requirements in a statute has been considered. A useful example is Hatton v. Beaumont

(1978) 52 A.L.J.R. 589; there, a statutory requirement that a person wishing to appeal

from a certain decision give security within a certain time was held to be directory only.

Arguments may be found against the proposition that the requirement with which the

Court is presently concerned is mandatory, in the sense that any failure to comply vitiates

all the proceedings which follow. None, however, was advanced to us and perhaps that

was so because s. 9A was enacted in 1962, well after the decision in Symes v. Ryan and

at a time at which it was assumed that that decision correctly stated the effect of

regulation 9 under the Motor Vehicles Insurance Regulations 1937. It appears to be the

proper course, then, to decide this case on the assumption on which it was argued;

namely that the intention of s. 9A(2) of the Act is that any step in an action of the kind mentioned in the subsection, other than service of the writ on the employer and the Board,

before filing of an affidavit of service on the latter is a nullity.

There is an affidavit, uncontradicted, that when the statement of claim of 18 August

1989 was delivered there had been no service on the Board and so, applying the law as

just discussed, that statement of claim was a nullity; it should be reiterated that it was not

contended otherwise. But the next statement of claim, delivered on 12 September 1989,

is said to be valid in part. It sets up a cause of action in respect of the injury at Charters

Towers mentioned above and in addition complains of injuries which the plaintiff is said

to have sustained on 13 September 1986 and on 9 January 1987, in the Northern

Territory. The pleading claims damages in respect of these two injuries, asserting that

the former was caused by negligence and breach of an implied term of the plaintiff’s

employment and that the latter was caused by breach of such a term.

That is, the statement of claim of 12 September 1989 set up three causes of

action, one relating to a Queensland injury of June 1986 and the other two relating to

Northern Territory injuries of 12 September 1986 and 9 January 1987. There is an

affidavit from a solicitor dealing with service of the 12 September 1989 statement of claim

on the Board, the terms of which are somewhat argumentative. But it is accepted that,

again, that statement of claim was delivered in breach of s. 9A(2), in that it was delivered

prior to the filing of an affidavit of service on the Board. The argument for the appellant

was to the effect that the pleading should be severed and treated as valid in respect of the

Northern Territory injuries; it seemed to be accepted that it was not otherwise valid.

The argument on behalf of the plaintiff with respect to the 12 September 1989 statement of claim involves two steps: first, it is said that s. 9A(2), in the circumstances appearing from the pleading, has no application to claims in respect of the Northern

Territory injuries; second, that s. 9A(2) is capable of being read, and should be read, as

excluding from any avoiding effect that part of the pleading which makes no claim in

respect of such an injury as is dealt with in s. 9A(2).

As to the first point, it is contended for the plaintiff that the injuries sustained in the

Northern Territory are not injuries in respect of which he is "entitled under subsection (1)

or (2) of section 9 of this Act to receive compensation from the Workers’ Compensation

fund". If that is so, then s. 9A(2), partly quoted above, does not apply because its

application is limited to injuries to which s. 9A(1) applies, i.e. to those within the

expression just quoted. Section 9(1) of the Act is not contended to be material; it is in

substance common ground that it applies only to injuries sustained in Queensland. The

question is whether the Northern Territory injuries are caught by s. 9(2), which reads in

part as follows:

" (2) Where an employer has a place of employment in Queensland or is for the time being present in Queensland and there employs a worker whose employment is not wholly carried out in Queensland, but with the knowledge and consent of his employer is in part carried out at a place outside Queensland, and that worker while outside Queensland receives an injury under circumstances that, had the injury been received in Queensland, would entitle him to compensation in accordance with this Act, that worker (and in the case of the death of the worker, his dependants) shall receive out of the Workers’ Compensation Fund compensation in accordance with this Act and the provisions of this Act shall with all necessary adaptions apply to and in respect of such injury:

Provided that -

(a)       compensation shall not be payable pursuant to this subsection if in respect of such injury the worker has (and, in the case of death of the worker, his dependants have) received workers’ compensation by whatever name called under the laws of any State other than Queensland or of the Commonwealth or a Territory thereof or any other country or obtained judgment against his employer independently of this Act;

. . .

This subsection -

. . .

(c)        does not apply to a worker who has been continuously engaged outside Queensland for more than two years in employment to which this subsection relates. "

There is no evidence relating to the factual matters which arise under the

provisions which have been quoted, but it is said in effect that a defence which has been

delivered proves enough to justify a conclusion that s. 9(2) is inapplicable to the Northern

Territory accidents. As to the proviso which has been quoted, counsel for the plaintiff

points out that the defence of the Workers’ Compensation Board of Queensland as

defendant by election alleges (para. 6(b)) that the plaintiff received worker’s

compensation under the laws of the Northern Territory in respect of the matters

complained of. That is so, but there is no admission of that allegation by the plaintiff.

However, counsel for the plaintiff admitted the truth of the allegation at the hearing before

us and it appears to be right, subject to any question of costs, to treat that point as not in

issue now. We say "subject to the question of costs", particularly in view of the fact that

at the hearing below, counsel for the plaintiff conceded, contrary to his submission before

us, that the claims relating to the Northern Territory accidents were caught by s. 9A(2) of

the Act.

We would therefore accept that the plaintiff received worker’s compensation under

the laws of the Northern Territory in respect of the injuries which occurred there. But it is

contended on behalf of the Board that the proviso to s. 9(2) does not have the effect of making the Northern Territory injuries such that the plaintiff is not "entitled under

subsection (1) or (2) of section 9 of this Act to receive compensation from the Workers’

Compensation Fund". The argument for the Board is to the effect that the entitlement

mentioned is to be judged by reference to the circumstances of the injury, ignoring

subsequent events which might have removed the entitlement; We agree with that view.

The language of the first paragraph of s. 9(2) tends to favour the Board’s contention. It

appears to be directed to the circumstances at the time of the injury itself; the proviso can

operate only at a later point. Further, it would seem absurd that the circumstance that the

employee’s entitlement to workers’ compensation had been entirely paid out should make

s. 9A inapplicable. Looking at the matter more broadly, it is unlikely that the legislature

intended s. 9A to be excluded where an employee whose employer is covered under the

Queensland statutory scheme happens to receive worker’s compensation under the law

of some other place. Despite that, the employer’s Queensland "cover" in respect of

damages claims would, one would think, be intended to subsist; it would still be expected

that the plaintiff would be paid any damages awarded out of the Workers’ Compensation

Fund, under s. 9A(1)(b) of the Act.

We conclude, then, that the submission that the Northern Territory injuries are not

within s. 9A(2) because the plaintiff received worker’s compensation under the law of the

Northern Territory cannot be sustained. But even if the contrary view were taken, it would

be difficult to see how the plaintiff would succeed on this issue. That is so because,

although one might make assumptions about some of the factual questions which can

arise under s. 9(2), there is no evidence directed to them. It is not proved whether or not

the employer had a place of employment in Queensland or was, for the time being,

present in Queensland at relevant times. There is no evidence as to whether or not the plaintiff was within para.(c) of s. 9(2), quoted above. As has been pointed out, no issue

was in the end raised about the application of s. 9A; ultimately it was conceded below

that the section applies. The evidence we have is insufficient to enable us to make a

determination on the point, either one conforming to or one contrary to the basis upon

which the learned primary judge, by concession, decided the case.

It follows that the second part of the plaintiff’s argument relating to the statement

of claim in question becomes irrelevant. There is no basis upon which this Court could

grant the plaintiff relief, founded on the plaintiff’s present argument, with respect to the

statement of claim of 12 September 1989.

On 30 April 1990 the requirements of s. 9A as to service on the Board and filing

an affidavit of service were finally complied with and a new statement of claim, making the

same allegations against the defendant as that served on 12 September 1989, was

delivered. A number of questions relating to the statement of claim of 30 April 1990 were

raised, but it seems to be necessary to deal with one only, and that is the date from which

the amendments contained in the statement of claim of 30 April 1990 became effective.

To recapitulate, the first statement of claim related to the Queensland injury only.

The two Northern Territory injuries were brought in by the second statement of claim, of

12 September 1989, but that was held, indeed conceded, below to be a nullity and there

is no factual foundation on which we would hold that conclusion to be incorrect.

The statement of claim of 30 April 1990 contained amendments, made without leave, although leave was necessary under the rules. The absence of leave does not invalidate the pleading of 30 April 1990, for that is covered by O. 93 r. 17, and no

application to set the pleading aside has been made. Further, it seems clear that the

irregularity consisting in amending without leave has been waived.

The plaintiff contends that the amendments the statement of claim of 30 April 1990

makes, adding allegations relating to the two Northern Territory injuries, relate back to the

date of the writ. If so, then, for limitation purposes an action is deemed to have been

brought relating to each of them on 26 May 1989, within time. If they do not relate back

to the date of the writ then the two claims are out of time. It was chiefly to have that point

determined that the application for directions, from the dismissal of which this appeal is

brought, was made.

Counsel for the plaintiff argued for treating the amendments as having been made

at the date of the writ, on the basis of the principle of Adam v. Shiavon [1985] 1 Qd.R. 1.

There the plaintiff brought an action based on damage sustained in a motor vehicle

accident. A Magistrates Court plaint was issued complaining of property damage only.

More than three years from the date of the accident there was an application to transfer

the proceedings to the Supreme Court. An order for transfer was made and the Court

also gave leave to amend in order to raise a claim for damages for personal injuries,

under O. 32 r. 1. The Court held that upon the proper construction of O. 32 r. 1(2), when

an amendment is made by the Court under that provision, after the expiration of the

limitation period, it "takes effect, not from the date when the amendment is made, but from

the date of the original document which it amends". The Court did not suggest, and there

is no basis on which it could possibly be held, that an amendment made without leave should be treated, as to the question of relation back, as if made pursuant to an order of

the Court under O. 32 r. 1.

It appeared that counsel for the plaintiff nevertheless desired us to hold that

whenever any amendment is made to a statement of claim, whether with or without leave,

it relates back to the original statement of claim and is, for the purposes of a limitation

statute, treated as having been included in the original statement of claim. No authority

in support of that proposition was cited. Reference was made to Gould v. Skinner [1983]

1 Qd.R. 377 for the proposition that "the statement of claim supersedes the claims on the

writ for all purposes". The expression used is "supersedes", which does not imply that

any new claims are deemed to have been made in the writ.

To revert to O. 32 r. 1; subr. (2) and (5) are read together so as to achieve the

result that an amendment made to add a new cause of action may be allowed even if out

of time. But that can only be done if the new cause of action arises out of the same facts

or substantially the same facts as the original cause of action. Here that is not so, and

even if it were so, that would not deem an amendment made without leave to have been

made by leave under O. 32 r. 1.

The only other point which it is necessary to mention is that some reliance was

placed on O. 24 r. 1. It is not easy to see how this rule can help the plaintiff. First, the

addition of the claims relating to the Northern Territory incidents is not within the rule:

Pianta v. BHP Australia Coal Ltd (C.A. No. 230 of 1994, 8 March 1995, unreported).

Secondly, O. 24 r. 1 does not deal with the possibility of amending so as to add a cause

of action out of time, that subject being dealt with in O. 32 r. 1(2) and (5).

The appeal must be dismissed with costs, being the costs of the respondent

Rockdril Contractors Pty Ltd only.