WorkCover Queensland v Zeller

[2001] QSC 47

SUPREME COURT OF QUEENSLAND

CITATION:

WorkCover Queensland v Zeller [2001] QSC 047

PARTIES:

WORKCOVER QUEENSLAND
(applicant)
v
SHANE JOHN ZELLER
(defendant)

FILE NO/S:

897/01

DIVISION:

Trial

DELIVERED ON:

28 February 2001

DELIVERED AT:

Brisbane

HEARING DATE:

1 February 2001

JUDGE:

Douglas J

ORDER:

1. That there be no order as to the cost of this application; and
2. That each party have liberty to apply.

DECLARATIONS:

1. That in respect of the Notice of Claim dated 26 September 2000 and given by the respondent to the applicant on or about 17 October 2000, the respondent is entitled pursuant to s 342 of the WorkCover Queensland Act 1996 to the benefit of the assumption that the proforma of the notice used by the respondent was lawfully approved for use under s 280 of the said Act;
2. That in the circumstances that the applicant had on 17 November 2000 stated that it was satisfied that the respondent’s Notice of Claim complied with s 280 of the said Act, the applicant may lawfully give a notice under s 285 of the said Act within six months after 17 October 2000;
3.  That the respondent may lawfully organise and hold a conference between the respondent and the applicant under s 293 of the said Act within three months after the applicant gives its notice under s 285 of the said Act.

CATCHWORDS:

WORKERS COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – NOTICE OF ACCIDENT – DETERMINATION OF CLAIMS – PROCEDURE BEFORE HEARING – PROCEDURE – whether a s 280 Notice under the WorkCover Queensland Act 1996 has the benefit of the assumption that the proforma of the notice used was lawfully approved for the use by virtue of s 342 of the Act.

Consequential orders based upon McCullagh v WorkCover Queensland 2001 QSC 029, 16 February 2001.

WorkCover Queensland Act 1996

McCullagh v WorkCover Queensland 2001 QSC 029

COUNSEL:

David North for the applicant
Richard Douglas for the respondent

SOLICITORS:

Tutt & Quinlan for the applicant
Shine Roche McGowan for the respondent

1. DOUGLAS J: This application was heard at the same time as application No 948 of 2001; McCullagh v WorkCover Queensland.  I gave judgment in that matter on 16 February 2001 sub nom McCullagh v WorkCover Queensland 2001 QSC 029 16 February 2001.

1. The chronology of events in this case is as follows:

26 September 2000                Accident

17 October 2000 S 280 Notice served upon WorkCover

17 November 2000 Claimant’s solicitors advised s 280 Notice complies.

20 November 2000                Decision in Scott v WorkCover Queensland 2000 QSC 414 delivered 23 January 2001. WorkCover’s solicitors confirm advice of 17 November 2000 and waive any ongoing obligation on the part of the complainant to comply with s 280.

1. For the reasons I expressed in McCullagh supra I am of the view that the s 280 Notice served by the claimant (respondent) upon WorkCover on 17 October 2000 has the benefit of the assumption that the proforma of the notice used was lawfully approved for use under s 280 of the WorkCover Queensland Act 1996 (“the Act”), because of the operation of s 342 thereof.

1. It follows in my view, that in light of my reasons in McCullagh supra the respondent is entitled to treat with WorkCover in respect of the other requirements of Part 5 of Chapter 5 of the Act and the requirements of Part 6 of Chapter 5 of the Act, on the basis that he has complied with s 280. It is clear in my view that the respondent must attempt with WorkCover to comply with Parts 5 and 6 of Chapter 5 of the Act before he can begin court proceedings (should they become necessary).

1. I therefore declare:

1. that in respect of the Notice of Claim dated 26 September 2000 and given by the respondent to the applicant on or about 17 October 2000, the respondent is entitled pursuant to s 342 of the WorkCover Queensland Act 1996 to the benefit of the assumption that the proforma of the notice used by the respondent was lawfully approved for use under s 280 of the said Act;

2. that in the circumstances that the applicant had on 17 November 2000 stated that it was satisfied that the respondent’s Notice of Claim complied with s 280 of the said Act, the applicant may lawfully give a notice under s 285 of the said Act within six months after 17 October 2000;

3.          that the respondent may lawfully organise and hold a conference between the respondent and the applicant under s 293 of the said Act within three months after the applicant gives its notice under s 285 of the said Act;

4.          that if the claim is not settled at any conference conducted pursuant to s 293 of the said Act, that both the respondent and the applicant may lawfully make a final written offer under s 294 of the said Act;

and I further order:

(i)        that there be no order as to the cost of this application; and

(ii)       that each party have liberty to apply.