Brook v Boonah Shire Council [2007] QSC 44

1 SUPREME COURT OF QUEENSLAND CITATION: Brook v Boonah Shire Council [2007] QSC 044 PARTIES: Trevor John Brook Applicant Boonah Shire Council Respondent FILE NO/S: S 769 of 2007 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland DELIVERED ON: 2 February 2007 DELIVERED AT: Brisbane HEARING DATE: 2 February 2007 JUDGE: White J ORDER: 1. That leave be granted to abridge time for bringing this application. 2. That leave be granted to amend the application to substitute Boonah Shire Council with Local Government WorkCare. 3. That the applicant have leave to commence the proceedings stayed until he complies with the requirements of Part 5 of the WorkCover Queensland Act 1996. 4. That no order be made as to costs. CATCHWORDS: WORKERS COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - PRELIMINARY REQUIREMENTS - CLAIMS FOR COMPENSATION - FAILURE TO MAKE CLAIM WITHIN TIME - GENERALLY - When an applicant seeks leave to commence proceedings under section 305 of the WorkCover Queensland Act 1996 despite non-compliance with section 280 of the Act – Whether an application to extend time pursuant to the Limitation of Actions Act 1974 must be made before leave is given pursuant to section 305. WorkCover Queensland Act 1996 (Qld) s3 Limitation of Actions Act 1974 (Qld) s x. Charlton v WorkCover Queensland [2006] QCA 498, -- 1 of 9 -- 2 ORDER 1 10 20 30 40 50 60 considered Davidson v State of Queensland [2006] HCA 21, applied COUNSEL: Mr AD Stobie Mr WD Campbell SOLICITORS: -- 2 of 9 -- 3 ORDER 1 10 20 30 40 50 60 SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION WHITE J No S769 of 2007 TREVOR JOHN BROOK Applicant and BOONAH SHIRE COUNCIL Respondent BRISBANE ..DATE 02/02/2007 ORDER -- 3 of 9 -- 4 ORDER 1 10 20 30 40 50 60 HER HONOUR: The applicant seeks leave to commence proceedings pursuant to section 305 of the WorkCover Queensland Act 1996 for damages for injuries allegedly occurring in an incident on the 3rd of June 1997 at Maroon and their sequelae when in the employment of the respondent, the Boonah Shire Council. He sustained some injury to his back and spent time off work immediately after the event, and from time to time thereafter. From February 2005, the condition and pain in his back seemed worse. On the 4th of January 2006 he consulted with his general practitioner who referred him a specialist. The applicant consulted a neurologist in early 2006, and on the 2nd of February 2006 maintains that for the first time he learnt of the true nature of his back injury and that he would be unable to continue his work as a labourer. He did not return to work. The radiology demonstrated degenerative change in his lumbar spine. Dr Campbell, the neurologist, recommended a decompression laminectomy. Dr Campbell wrote that the applicant's referring doctor, and by inference the applicant, did not mention to him any work-related injury and did not attribute the current changes and symptoms to anything other degenerative change. On the 6th of March 2006, the applicant made an application for workers compensation for degeneration of his lumbar spine and left sciatica. On the 6th of September 2006, the -- 4 of 9 -- 5 ORDER 1 10 20 30 40 50 60 Queensland Local Government WorkCare Scheme rejected the applicant's claim on the basis that he had been compensated for the 1997 injury and there was no new work-related injury. The applicant consulted solicitors on the 13th of September 2006. After various investigations and advices, on the 16th of January 2007, a notice of claim pursuant to section 280 of the WorkCover Act was sent to the respondent Shire. On the 24th of January 2007 the solicitors acting for the Shire and the Local Government WorkCare wrote that the claim was non- compliant in certain particulars relating to outstanding financial documents. Non-compliance would be waived, subject to the applicant seeking those documents and providing them within 14 days, but this was conditional upon the applicant bringing an application under section 31 of the Limitation of Actions Act 1974 within three months of the date of compliance. The applicant has not brought such an application and contends that he need not do so. Mr W Campbell, who appears for the respondent, submits that the applicant must do so, because otherwise, there is no established period of limitation. This is because section 280(1) provides that before starting a proceeding in a Court for damages, a claimant: "Must give notice under this section within the period of limitation for bringing a proceeding for damages under the Limitation of Actions Act 1974". It is not disputed that the three year limitation period expired on 3rd June 2000, and that if the applicant is to be -- 5 of 9 -- 6 ORDER 1 10 20 30 40 50 60 able to contend that he gave his notice within the limitation period as required by section 280, it must be as the result of an extension granted under sections 30 and 31 of the Limitation of Actions Act. In this application, then, the applicant seeks an order pursuant to section 305 of the WorkCover Act that he have leave to commence proceedings despite non-compliance with section 280. Before considering that, it is necessary to consider the provisions of section 308. It provides, relevantly: "A claimant may bring a proceeding for damages for personal injury after the end of the period of limitation allowed for bringing a proceeding for damagers for personal injury under the Limitation of Actions Act 1974 only if: (a) Before the end of the limitation period; (iv) A Court gives leave under section 305; and (b) The claimant complies with section 302." By sub section(2), the proceeding must be brought within 60 days after a compulsory conference for the claim is held. Mr Stobie, for the applicant, relies on Charlton v WorkCover Queensland (2006) QCA 498. The facts in that case are complex, but it is the only to the statements made by Williams J A in paragraph 42 that I need refer. The issue there under discussion was whether the reference to the limitation period in section 308(1)(a) was to the ordinary limitation period, or to an extended period, consequent upon an order made pursuant -- 6 of 9 -- 7 ORDER 1 10 20 30 40 50 60 to sections 30 and 31 of the Limitation of Actions Act. The Court found that it included such an extended period. Mr Campbell submits that an application to extend must be brought within the potentially extended period. Initially, I thought that there was force in this argument, but on reflection, that it cannot be accepted. The decision of the High Court in Davidson v State of Queensland (2006) HCA 21 referred to in Charlton makes plain that not only is the reference in the legislation to the limitation period and to any extended period, whether the order and, I would suggest, any application to extend is made before or after the application under section 305, or similar, is immaterial. That is, I think, clear from statements at paragraphs 17 and 19 in the principal majority judgment that the Court should not attempt to "second guess" the prospects of the application to extend. Further, the respondent to a section 305 application will be WorkCover or its equivalent, while a defendant to proceedings to extend time will be, in most cases, the employer. A matter which is well recognised would enliven the Court's discretion under section 305 is the imminent expiration of the limitation period. That is, of whichever variety: the normal limitation period or an extended limitation period. It is not until the matter is in the Court as a proceeding that whether there is a limitation defence will need to be established finally. -- 7 of 9 -- 8 ORDER 1 10 20 30 40 50 60 Accordingly, the applicant should be given leave to commence proceedings pursuant to section 305, subject to compliance with the requirements of part 5 of the WorkCover Act. I would not impose a condition that an application be brought pursuant to the Limitation of Actions Act. The application is brought against the incorrect respondent. It should be Local Government WorkCare. Mr Campbell appears for both the respondent Shire Council and Local Government WorkCare. There should therefore be leave to amend to substitute Local Government WorkCare for the Boonah Shire Council wherever appearing in the documents in these proceedings. And I discern, Mr Stobie, that you also need leave to abridged time, is that correct, to bring this application? MR STOBIE: Yes, your Honour. And that was named in the application. HER HONOUR: Yes. MR STOBIE: Yes. HER HONOUR: And, Mr Campbell, you are here, so I take - and never argued the matter, so I take it that is not an issue----- MR CAMPBELL: No, your Honour. HER HONOUR: -----so leave is also given to abridge time for the bringing of this application. Now, what do you want to do about costs, gentlemen? ... -- 8 of 9 -- 9 ORDER 1 10 20 30 40 50 60 HER HONOUR: So, there will be no order as to costs. ... ----- -- 9 of 9 --