Engeler v State of Queensland [2017] QDC 253

DISTRICT COURT OF QUEENSLAND CITATION: Engeler v State of Queensland [2017] QDC 253 PARTIES: PENELOPE GAIL ENGELER (plaintiff) v STATE OF QUEENSLAND (first defendant) and AUSTRALIAN VOLUNTEER COASTGUARD ASSOCIATION INC (second defendant) FILE NO/S: BD2810/2017 DIVISION: PROCEEDING: Applications ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 11 October 2017 DELIVERED AT: Brisbane HEARING DATE: 22 September 2017 JUDGE: McGill SC, DCJ ORDER: On the first defendant’s application, judgment under r 293 for the first defendant. Plaintiff’s application against the first defendant dismissed. Order that the time allowed for commencing the proceeding against the second defendant be extended to 29 July 2017. Second defendant’s application dismissed. CATCHWORDS: EMPLOYMENT LAW – Injury to employee – limitation of actions – statutory extension of time limit to 60 days after conference held – when conference “held” – proceeding out of time. LIMITATION OF ACTIONS – Personal injuries – extension of time limit to 60 days after conference held – when conference “held” – effect of act – whether power to grant further extension – exercise of discretion to allow further extension. Personal Injuries Proceedings Act 2002 s 59. Workers’ Compensation and Rehabilitation Act 2003 s 302(3). -- 1 of 8 -- 2 Blundstone v Johnson [2010] QCA 148 – applied. Bonser v Melnacis [2002] 1 Qd R 1 – considered. Buchanan v Sword Holdings Pty Ltd [2004] QSC 9 – cited. Castillon v P&O Ports Ltd [2006] 2 Qd R 220 – cited. Edmunds v D Dunn Industries Pty Ltd [2007] 1 Qd R 418 – cited. Kash v SM & TJ Cedergren Builders [2004] 1 Qd R 643 – followed. Narayan v S-Pak Pty Ltd [2002] QSC 373 - cited. Roberts v ANZ Bank [2006] 1 Qd R 482 – cited. The Commonwealth v Verwayen (1990) 170 CLR 394 – cited. Venz v Moreton Bay Regional Council [2009] QCA 224 – applied. Ward v Wiltshire Australia [2008] QCA 93 – cited. Winters v Ward [2006] 2 Qd R 285 – cited. Young v Hones (No.2) [2013] NSWSC 1429 – distinguished. COUNSEL: R D Green for the plaintiff S P Sapsford for the first defendant J O McClymont for the second defendant SOLICITORS: A C Lawyers for the plaintiff Crown Solicitor for the first defendant McCullough Robertson for the second defendant [1] It was a dark and stormy night,1 and the plaintiff was travelling across Moreton Bay on the motorboat “Redcliffe Leagues 2” operated by the second defendant. She was travelling in the course of and for the purposes of her employment with an entity appropriately sued as the first defendant. She alleges that at one point the boat hit a wave, and she was thrown to one side and as a result injured her spine, for which she is claiming damages.2 This occurred on 18 October 2013. A notice of claim under the Personal Injuries Proceedings Act 2002 (“PIPA”) was delivered to the second defendant on 4 December 2015, and a notice of claim under the Workers’ Compensation and Rehabilitation Act 2003 (“WCRA”) was delivered to the first defendant on 11 October 2016.3 Background [2] The pre-litigation procedures were not completed prior to the expiration of the limitation period. On 17 October 2016 another judge made an order under s 59 of PIPA allowing further time within which to commence a proceeding notwithstanding that the limitation period had expired, until (relevantly) 60 days after the compulsory conference was held for the purposes of PIPA.4 Because of statutory provisions in 1 Statement of Claim, para 6; with apologies to Lord Lytton. 2 Facts from Statement of Claim. 3 Affidavit of Dzajkovski filed 18 September 2017, para 16. It appears from the affidavit that at one time the plaintiff was represented by other solicitors who she said had not been advancing her matter properly, and that the claim against the first defendant was delayed because initially there was a determination that she did not sustain an injury for the purpose of s 32 of WCRA, and it was necessary for the plaintiff to appeal to the Medical Assessment Tribunal. 4 Affidavit of Jacobs filed 20 September 2017, Exhibit BLJ3. -- 2 of 8 -- 3 WCRA, no such order was necessary, but the effect of the statutory provisions was the same as the effect of the order. [3] A compulsory conference was held on 22 May 2017 involving the plaintiff and both defendants, a combined conference under each Act. In a situation like this where there are two or more defendants it is highly desirable for there to be one conference covering the whole matter. Obviously the matter was not resolved, and as required by both Acts final offers were exchanged at that conference. [4] The solicitor for the plaintiff deposed to his having been of the view following the conference that proceedings were to be commenced on or before 21 July 2017, and he put matters in hand to prepare the claim and statement of claim. However on 13 July 2017 he received a letter from the solicitors for the second defendant asserting that “the plaintiff now has until 4 August 2017 to file court proceedings in this matter.”5 It appears that the solicitor for the second defendant calculated this date on the basis that the period of 60 days allowed by the order ran from the time when the final offers ceased to be open for acceptance.6 The solicitor for the plaintiff practises in Sydney, and deposed to having relied on the date contained in the letter from the second defendant’s solicitor for the purposes of identifying the filing deadline,7 presumably on the basis that Queensland solicitors were to be expected to have a better understanding of the correct operation of the Queensland Acts. The proceeding was not commenced until 28 July 2017. First defendant [5] After the proceeding was commenced, the first defendant applied for judgment under r 293 on the basis that the claim was doomed to fail because it had not been commenced as required by WCRA s 302(3), in that it had not been commenced within 60 days after the compulsory conference had been held.8 In response to this, the plaintiff’s first submission was that the holding of the compulsory conference included the process of making final offers, so that the time within which a final offer was open for acceptance, which by the statute had to be 10 business days, should be characterised as part of the holding of the compulsory conference. WCRA s 292(9) does not permit the proceeding to be commenced until that period of 10 business days has expired, and therefore, in order to give effect to the provision that the claimant has 60 days after the compulsory conference has been held within which to commence a proceeding, the period of 60 days must run from the expiration of the period when a claimant is not allowed to commence a proceeding. If that is not the case, for practical purposes the claimant has only about 46 days within which to commence a proceeding. The proceeding cannot be commenced unless the compulsory conference process does not resolve the claim, and that will not be known until the period of ten business days has expired. [6] I was told that there has been no decision which has directly considered this argument, and I am not aware of one. There have been however decisions which have proceeded on the basis that the date on which the conference is “held” for the purpose of s 302 5 Affidavit of Dzajkovski, para 26, Exhibit ID-1. 6 Apart from the fact that the calculation fits the date, the letter had just referred to the expiry of the final offers. 7 Affidavit of Dzajkovski, paras 26, 27, 29, 46. 8 This 60 day period cannot be extended: Narayan v S-Pak Pty Ltd [2002] QSC 373. -- 3 of 8 -- 4 is the date on which the parties actually confer.9 That strikes me as the natural reading of the words used in the section. Such an interpretation is also consistent with the statutory objective that claims should be resolved expeditiously,10 in that, if the pre- litigation procedure is unsuccessful in settling the claim, if the claimant wants to litigate, then the claimant should do so promptly. [7] There is no particular provision of the Act which positively suggests the interpretation of “held” contended for on behalf of the plaintiff. There are a number of other sections which use the word “held” in relation to the compulsory conference, most of which speak of a situation which exists before there has been a conference, and which are obviously speaking of the day on which the parties actually convene to confer.11 On the other hand, s 292(2) requires the making of written final offers if “a claim is not settled at a compulsory conference” which suggests that any settlement by acceptance of a final offer is not regarded as something that happens at or during the conference. There is also the consideration that, if the legislative intent had been that the period of 60 days run from the expiry of the prohibition on the commencement of a proceeding in s 292(9) so that the claimant had a full 60 days within which to commence the proceeding, it would have been easy enough for the legislature to say that expressly. As well, this constraint only operates in a situation where the claimant is outside the limitation period otherwise applying in relation to the claim, and it might be expected that a claimant in such a position, who had obtained the benefit of an extension of the limitation period under s 302(2) to enable the pre-litigation procedures to be finalised, would then litigate promptly. [8] On the whole I am not persuaded that there is any good reason in the text of the legislation itself, or in its scheme of operation, to interpret s 302(3) other than by its natural reading, which is that it provides a limit of 60 days running from the day on which the parties convene to confer as required by WCRA s 289, which is the day on which the compulsory conference under that Act is held. If the conference is adjourned from time to time, assuming that that is possible, it may be that in that way a conference could be held on more than one day, or over a period of time; it is not necessary to decide that point for present purposes, and even if that is the correct interpretation, that does not support the interpretation for which the plaintiff contends. The issue I have to decide is whether the concept of holding the compulsory conference extends until the expiry of the final offers exchanged at the conference. I am not persuaded that it does. [9] It occurs to me that, although such offers are required to remain open for 10 business days, the statute does not necessarily limit the period within which they are to be open to 10 business days. If it is possible to make a final offer which is open for a longer period, and if the holding of the compulsory conference is not regarded as concluded until after the time for acceptance of all final offers has expired, a claimant could manipulate the time available for commencing a proceeding on the claim by allowing a longer period within which to accept the claimant’s final offer than the 10 business days required by WCRA s 292(9). [10] There was a second argument advanced by counsel for the plaintiff, that there was potentially an extension of time available under the Limitation of Actions Act 1974 s 9 Buchanan v Sword Holdings Pty Ltd [2004] QSC 9 at [8]; Edmunds v D Dunn Industries Pty Ltd [2007] 1 Qd R 418 at [15]. 10 WCRA s 273, 274. 11 WCRA ss 289(3), (4), 290(1), (2), 290A(1). -- 4 of 8 -- 5 31. It was submitted that the material fact of a decisive character was either the date within which the plaintiff was required to commence a proceeding, or the practice in Queensland for determining the time within which a proceeding had to be commenced under the relevant provision of WCRA. Apart from the fact that this is really an attempt to dress up a question of law as a question of fact, the difficulty here in my view is that, up until 13 July 2017, the plaintiff’s solicitor, (and hence the plaintiff if the plaintiff had taken advice on the point) knew the correct time limit within which a proceeding was to be commenced.12 The plaintiff’s case is that he was then led astray by what was said by the second defendant, but that would provide no basis for relief against the first defendant. [11] Although the particular date by which a proceeding had to be commenced would not have been known, or indeed knowable, until the date for the conference is fixed, that will always be the case prior to the time when a date for a compulsory conference is determined, and even then the date would be provisional until the compulsory conference was actually held. I consider there is no discretionary basis on which an extension of time under s 31 would be given, even if the foundation for it could be laid. In this case I have no doubt that if the matter went to trial a defence founded on the expiry of the limitation period applicable to the plaintiff’s claim against the first defendant would succeed.13 [12] Overall therefore there is no reason to doubt that if the matter went to trial the first defendant would be successful, and there is no need for a trial of the action. I give judgment that the plaintiff’s claim against the first defendant be dismissed. I should also say that on 21 September 2017 the plaintiff filed an application seeking leave to commence the proceeding on or by 4 August 2017 pursuant to WCRA s 300(3)(b). On the hearing it was conceded that that provision did not assist, and the plaintiff’s application against the first defendant is also dismissed. Second defendant [13] The second defendant has also applied for summary judgment, but the position in the proceeding against that defendant is different. Although there was a 60 day period allowed for commencing a proceeding after the end of the compulsory conference, that was a period fixed by an order of the court under s 59 of PIPA. It is therefore a period which is susceptible of extension. It is a time limit fixed by an order of the court, and therefore able to be extended under UCPR r 7. Apart from that, there is authority from the Court of Appeal establishing that, after the power given by s 59 to allow a proceeding to be commenced at a later time has been exercised, it remains open to a court to extend the time further, to an even later time.14 This is so, even if the earlier order of the court has been made by consent, at least unless the consent order reflects a contract between the parties to the effect that any proceeding must be commenced within that period. There was nothing in the evidence to suggest that that occurred in this case, and such a proposition was not argued. 12 Affidavit of Dzajkovski, para 20, 25. 13 This is not one of those cases where there is sufficient uncertainty about a limitation defence to justify deciding it after a trial: cf Young v Hones (No.2) [2013] NSWSC 1429. 14 Venz v Moreton Bay Regional Council [2009] QCA 224 (concerning an order under s 59 after a consent order had been made under s 43; Blundstone v Johnson [2010] QCA 148, (where a second order was made under the Motor Accidents Insurance Act 1994 s 57, a section analogous to PIPA s 59). -- 5 of 8 -- 6 [14] By either process, any extension is a matter of discretion, and it was submitted that the effect of the authorities is that the court would not readily exercise the discretion so as to deprive the defendant of the benefit of a defence under the Limitation of Actions Act 1974.15 Nevertheless the discretion must be exercised on the basis of the circumstances of the particular case. [15] It was submitted that the second defendant potentially faced a further disadvantage, in that, if the first defendant’s application for judgment were successful so that it were let out of the proceeding, which continued against the second defendant, a notice claiming contribution by the second defendant to the first defendant might be resisted on the principle in Bonser v Melnacis [2002] 1 Qd R 1. In that case however the injured employee had never completed the steps required under the WorkCover Queensland Act 1996 before a proceeding could be commenced against the employer. Hence the employer did not meet the description in the Law Reform Act 1995 of a tortfeasor who if sued would have been liable to the plaintiff, because a proceeding could never have been brought against the employer by the plaintiff. That was because it was held that the effect of the 1996 Act was that no cause of action arose against the employer until those steps had been taken. [16] The position in this case is different: the pre-litigation procedures were completed, and during the period of 60 days after the compulsory conference was held it was open to the plaintiff to have sued the first defendant. The problem for the plaintiff is that she did not do so during that period, so that the right to sue the first defendant was lost. But, as noted in Bonser, the term “if sued” has been interpreted as “if sued at any time”, and if the plaintiff in fact had a good cause of action against the first defendant, the plaintiff would have succeeded if she had sued during the 60 day period after the compulsory conference. In those circumstances, the second defendant is entitled to claim contribution from the first defendant. Indeed, because of that right, dismissing the proceeding against the first defendant would appear to be relevant only if the plaintiff fails entirely against the second defendant.16 Accordingly, there is no risk of the second defendant suffering any prejudice of this kind because of the inability of the plaintiff to pursue the proceeding against the first defendant. [17] It was submitted that the outcome of that argument could not presently be determined, but it seems to me that, if it were raised at some time in the future, it would clearly be resolved in favour of the second defendant. Further, counsel for the first defendant stated expressly when asked that it was conceded that the plaintiff could have sued the first defendant in the period after the 10 day exclusion had elapsed but before 60 days had elapsed after the compulsory conference was held. In my view therefore there is no risk of this prejudice being suffered by the second defendant, and no reason to delay deciding the application against the second defendant. No other prejudice to the second defendant was suggested, and there was no suggestion that a fair trial of the plaintiff’s claim could not now be held. [18] There is a further matter which is, I think, relevant to the exercise of the discretion. As indicated in the recital of the facts earlier, the plaintiff’s case is that she failed to commence the proceeding within time because she relied on the statement from the solicitor for the second defendant as to when the right to sue came to an end. That 15 Winters v Ward [2006] 2 Qd R 285 at [34]; but see Ward v Wiltshire Australia [2008] QCA 93 at [69]. 16 I have not been asked to, and have not considered the merits of the plaintiff’s claim against either defendant. -- 6 of 8 -- 7 was the effect of the evidence of the solicitor,17 who was not cross-examined on his affidavits. At one point it appeared that counsel for the second defendant was seeking an adjournment of the proceeding in part so that there would be the opportunity at some later time for cross-examination of the plaintiff’s solicitor, but ultimately no application to cross-examine was made before me. [19] It was submitted that there could be no reliance in circumstances where, prior to the letter being written, the solicitor was proceeding on the basis that the time expired on what was the correct date. However, I regard that as only confirming that thereafter the solicitor allowed that time to pass specifically in reliance on the representation of the second defendant’s solicitor as to when a proceeding could be commenced. [20] It was submitted that an extension of time under s 59 of PIPA could not be conferred by estoppel, for the same reason that it could not be conferred by agreement between the parties, due to the fact that the section is expressed in mandatory terms. It is true that as a general proposition if an entitlement to sue depends on compliance with statutory prescribed conditions, non-compliance will not be excused because of what may otherwise amount to waiver or estoppel.18 Section 59 however is not concerned with the right to sue, but with the operation of the limitation period, and is designed to overcome difficulties which might otherwise arise for a claimant with the operation of a limitation period because of the necessity first to comply with the pre-litigation procedures.19 But it is not necessary for a plaintiff to prove that the action has been commenced prior to the expiration of the limitation period; a limitation defence is one that bars the remedy, not the right, and it is a matter for the defendant to plead and prove that defence. It is also established that the availability of a limitation defence is something that can be waived, or be the subject of an estoppel or be extended by agreement.20 Indeed, it is not uncommon for such agreements to be made. [21] Accordingly, in a context where, if the proceeding is not commenced within a particular time, the result will be that the defendant has a defence under the Limitation of Actions Act, it is always open to the defendant simply to grant an extension of time, that is, to say that a proceeding may be commenced up to any date which is later than the date when the limitation period would otherwise expire without exposure to that defence. In those circumstances, I consider that there is no difficulty in principle in an extension of the limitation period to 4 August as against the second defendant on the basis of agreement, estoppel or waiver. [22] It was submitted that it was appropriate to wait until a reply had been filed to the defence raising the Limitation of Actions Act defence, to see whether an estoppel was pleaded. There are two difficulties with that argument. The first is that the plaintiff’s solicitor has exhibited a proposed reply which indicates that an estoppel will be pleaded,21 I suppose unless one becomes unnecessary, and the second is that strictly speaking I am not upholding an estoppel. What I am being asked to do is extend the period within which the proceeding can be commenced, either by making a further order under s 59, or by exercising the power under UCPR r 7. There is no reason to delay a decision on that matter to enable the question of whether there really is an 17 Affidavit of Dzajkovski, paras 26, 27, 29, 46. 18 Roberts v ANZ Bank [2006] 1 Qd R 482 at [20-22]; Castillon v P&O Ports Ltd [2006] 2 Qd R 220 [28], [29]. 19 Kash v SM & TJ Cedergren Builders [2004] 1 Qd R 643 at 647 [16]. 20 The Commonwealth v Verwayen (1990) 170 CLR 394. 21 Affidavit of Dzajkoski filed by leave. -- 7 of 8 -- 8 estoppel to be decided on a later date. It is, I think, sufficient to say that I strongly suspect that there would be a good estoppel against the second defendant, but at the moment the significance of the misrepresentation as to when the proceeding had to be commenced lies in its providing a compelling reason why the discretion to extend the time should be exercised in favour of the plaintiff. [23] Had it not been for the solicitor’s mistake in the letter, and the plaintiff’s solicitor’s reliance on it, there is no reason to think that the movement of the plaintiff’s solicitor towards commencing a proceeding within time would have been unsuccessful. When he believed he had more time to commence the proceeding, he did take advantage of this to some extent, but that does not mean that, if he had continued in his prior belief as to the final date to commence a proceeding, he would not have met that date. This was a matter which was not explored in cross-examination, nor was an application made to cross-examine the solicitor for that purpose. [24] It is correct that, as long as one proceeds on the basis that the 60 day period runs from the actual day on which the parties convened for the compulsory conference, the calculation of the relevant period is straightforward, but it is unsurprising that a solicitor practising in Sydney was prepared to rely on a local solicitor as to this matter, particularly in circumstances where the period adopted in the letter was 60 days from when the 10 day period for accepting final offers expired. This was not a situation where the date did not appear to relate to anything relevant; it was the expiration of 60 days after something related to the compulsory conference. Hence the date stated in the letter, though incorrect, was plausible. I have rejected the argument that that is the correct way to calculate the period, but the Sydney solicitor may well have assumed that there was Queensland authority with which he was unfamiliar which supported the proposition which I have rejected. [25] If no extension is granted the plaintiff will lose the opportunity to pursue her claim which may well be a good one, and will have done so because her solicitor was led into error by the solicitor for the second defendant. It seems to me that that provides a good reason in the circumstances of this case for extending the period within which the proceeding can be commenced as against the second defendant so that it includes the day on which the proceeding was in fact commenced. [26] The second defendant also sought judgment against the plaintiff on the basis that the limitation period had expired when the proceeding commenced. The plaintiff cross- applied for leave to commence a proceeding on or by 4 August, or in the alternative an extension of the time limited by the other order.22 In circumstances where the proceeding was in fact commenced on 28 July, it would be sufficient to extend the time allowed by s 59 of PIPA to 29 July 2017.23 Accordingly, on the plaintiff’s application I order that the time allowed for commencing the proceeding be extended to 29 July 2017. As a result of that order the proceeding has been commenced within time so far as the second defendant is concerned, so the second defendant’s application is dismissed. [27] In the circumstances the first defendant has been successful and there is no obvious reason why it should be deprived of its costs of the proceeding, but submissions on costs have not been made, and I will hear submissions from all parties when or after the judgment is delivered. 22 The plaintiff filed on the hearing an amended application seeking the order on either basis. 23 I will act under s 59 to avoid any risk that the earlier order was made without jurisdiction. -- 8 of 8 --