Carbone v AA Company Pty Ltd [2006] QSC 293

SUPREME COURT OF QUEENSLAND CITATION: Carbone v AA Company Pty Ltd [2006] QSC 293 PARTIES: ANDREW JOHN CARBONE Plaintiff and AA COMPANY PTY LTD Defendant FILE NO/S: S5847/02 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court DELIVERED ON: 6 October 2006 DELIVERED AT: Brisbane HEARING DATE: 29 September 2006 JUDGE: Robin QC AJ ORDER: Application dismissed CATCHWORDS: Uniform Civil Procedure Rules r 24 – defendant applied to set aside series of registrar’s orders made ex parte for renewal of the claim – the evidence suggested there was no prejudice to the defendant COUNSEL: Applicant/Defendant –Mr M Grant-Taylor SC Respondent/Plaintiff – Mr C Harding SOLICITORS: Applicant/Defendant –Eardley Motteram Respondent/Plaintiff – Anne Murray & Co [1] The defendant applies for setting aside of registrar’s orders of 25 June 2003, 21 June 2004 and 27 June 2005 made under r 24(2) of the Uniform Civil Procedure Rules renewing the Plaintiff’s claim. On the basis of success (even limited to the third order) the defendant seeks dismissal of the claim and judgment for it against -- 1 of 8 -- 2 the plaintiff. The orders were all made ex parte; accordingly, as a person affected by them, the defendant is entitled to seek to have them set aside without reference to any time limit (doubtless, inordinate delay in the face of knowledge of an order might lead to embarrassment); the review process invoked is not an appeal. See MQF v Corry [2000] QSC 416 at [9]; Capima Pty Ltd v Hansen [2005] QSC 208 at [30]. [2] Rule 24(2) sets out two bases for a renewal for up to a year: reasonable efforts have been made to serve the defendant or there is another good reason to renew the claim. Here, “other good reason” has been relied on. (It may be noted that only if the renewal would apply to any period falling on or after the fifth anniversary of filing of the claim is the court’s leave necessary subparagraph: (4).) [3] The leading case of Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337 (a decision of Stephen J sitting alone) was summarised authoritatively in the Court of Appeal by Pincus JA in Muirhead v The Uniting Church in Australia Property Trust (Q) [1999] QCA 513 at [4]: “(1) There is a tendency to relax rigid time limits where that is legally possible and where it can be done without prejudice or injustice to other parties. (2) The discretion may be exercised although the statutory limitation period has expired. (3) Matters to be considered include the length of delay, the reasons for it, the conduct of the parties and the hardship or prejudice caused to the plaintiff by refusing renewal or to the defendant by granting it. (4) There is a wide and unfettered discretion and there is “no better reason for granting relief than to see that justice is done”.” Muirhead confirms that (2), without more, does not warrant favourable exercise of the discretion. -- 2 of 8 -- 3 [4] Orders as sought here were made in Capima, there being “no good reason” and risk of prejudice to the defendant which had no notice of an intended claim until seven years after it arose. Mr Grant Taylor’s written submissions provide a description of an unreported case on which I am happy to rely; his summary is borne out by a full copy of the reasons supplied: “20. A similar outcome ensued in Melling v Australia Meat Holdings Pty Ltd Unrptd – Supreme Court, Brisbane – No S 5396/02 – Chesterman J – 05.05.05. There the claim had been brought under the Personal Injuries Proceedings Act 2002. The claimant instituted proceedings on 17 June, 2002. He did not serve the proceedings and on 26 June, 2003 obtained an order ex parte from the Registrar that the originating process be renewed for twelve months. The proceedings were not served prior to 17 June, 2004. On 6 July, 2004 the plaintiff again obtained an order ex parte from the Registrar extending the claim for a further twelve months. The originating process was ultimately served on the defendant on 25 October, 2004, some five years and a few months after the claimant had contracted his illness and some 2 ½ years after he had filed proceedings in the court. The reason the claimant gave to the Registrar for not serving the proceedings was that he wanted that claim to run simultaneously with his WorkCover claim. The defendant employer applied to have the ex parte order set aside on the basis there was no good reason for the orders made renewing the claim. It was argued that that was so because the claimant had ultimately served the defendant with the PIPA proceedings at a time when he had not yet served the proceedings in the other action against his employer. 21. The court found the express basis for the renewal and delay in service had been rejected by the claimant’s own conduct. The court further found it was not necessary to delay in serving the employer for nearly 2½ years to attempt to ensure the proceedings brought by the claimant against his employer and against the PIPA defendant run simultaneously. Chesterman J was clearly influenced by the very late notice of the claim, five years after the illness was contracted, and found there was no good reason why the proceedings could not have been served earlier, and ordered that the orders of the Registrar renewing the originating process be set aside.” -- 3 of 8 -- 4 [5] It is said that Mr Carbone’s own conduct undermines the basis of the renewals sought in a similar way in that it was asserted to the registrar, by a solicitor’s affidavits, that delay was attributable to steps being taken to have brought in neck and back injuries allegedly suffered on the same occasion as the head injury which alone had featured in dealings with WorkCover. Neck and back injuries play no part in the Notice of Claim served on 20 June 2005, nor could they be considered at a compulsory conference held under s 293 of the WorkCover Queensland Act 1996. [6] The complexities of that Act were ventilated in some detail in the course of the hearing, leading me to reserve decision. Mr Grant Taylor’s argument about the plaintiff taking inconsistent positions under the WorkCover Queensland Act strikes me as technical, and deprived of merit by the admitted complexities of the legislation. On this aspect, Mr Carbone obtained a Conditional Damages Certificate dated 25 May 2002 in respect of a Head Injury suffered on 28 June 1999 in the following terms: “Permanent Impairment from Injury This Conditional Damages Certificate is issued, pursuant to Section (262, 265, 270) of the WorkCover Queensland Act 1996 on the basis that there is an urgent need to bring proceedings for damages. A Conditional Damages Certificate is issued when WorkCover is not satisfied that: ● the person was a worker when the injury was sustained; or ● the worker has sustained an injury within the terms of the Act; or ● the worker’s degree of permanent impairment has been assessed in the way mentioned for the injury under Chapter 3, Part 9 of the Act. This certificate allows proceedings to be commenced, however, the proceedings are stayed until the above matters are resolved. When the above matters have been resolved, WorkCover may issue a Damages Certificate which will allow you to continue proceedings. Please note that you must comply with Chapter 5 of the Act to continue proceedings.” [7] There has been no “Damages Certificate” nor any intimation in terms that the Conditional Damages Certificate became unconditional as referred to in sub-section (5) of s 262: -- 4 of 8 -- 5 “262.(1) The injury sustained by the claimant must be assessed in the way provided for under chapter 3, part 9. (2) The claimant can not seek damages until WorkCover gives the claimant a notice of assessment and the claimant has complied with the requirements of chapter 3, part 9, division 3. (3) However, WorkCover may give the claimant a conditional damages certificate if there is an urgent need to bring proceedings for damages and the claimant’s permanent impairment has not been assessed or agreed. (4) If a conditional certificate is given, the claimant may start proceedings for damages for the injury, but the proceedings are stayed until WorkCover makes the certificate unconditional and the claimant complies with parts 5 and 6. (5) WorkCover must make the certificate unconditional when the claimant has been assessed and has been given a notice of assessment.” [8] A notice of assessment dated 25 September 2002 did issue, as follows: “Injury description Degree of permanent impairment attributable to the injury Lump sum compensation Chronic Subdural Hygroma 2.00% $2,693.70 You have sustained permanent impairment from the injury assessed for the purposes of this Notice of Assessment. The work related impairment (WRI) for your injury is: 2% Your injury is a non-certificate* injury You are entitled to lump sum compensation of $2,693.70 and therefore, under section 205 of the WorkCover Queensland Act 1996, you are offered the above amount lf lump sum compensation.” -- 5 of 8 -- 6 [9] The defendant’s contention is that this put Mr Carbone in a position to proceed with his claim (which was filed on 27 June 2002) and underlies his having been “caught out” in the same way as Melling. [10] I do not find the matters comparable. As events happened, in June of each of 2003, 2004 and 2005, the solicitor, Mr Lawson, filed an affidavit in support of a r 24 application. The story is much more complicated than Melling’s straightforward one of getting proceedings under different legislative regimes synchronised. The 2003 affidavit says that WorkCover Act procedural requirements are still being gone through, the next of which would be Mr Carbone’s lodging his Notice of Claim for damages “anticipated … within the next 30 days”, following which WorkCover would have six months to respond, to be followed by possible negotiations, etc. before the Act allowed the plaintiff to attend to service of the Claim. The 2004 affidavit recites some progress, complains of delays contributable to counsel (not Mr Harding) and alludes to the plaintiff’s considering “inclusion of another head of damage” which might yet lead to amendment of the original Claim. This affidavit presents a situation of going “back to the drawing board”, so to speak, which might start the whole process running all over again. The 2005 affidavit says nothing about an expanded Claim, but reports delivery of the Notice of Claim for Damages”, WorkCover’s response to which was “currently awaited”. [11] On the face of things, on that evidence, the several exercises of discretion by the registrar to renew appear to me sound. It seems reasonable enough to have investigated the appropriateness of expansion of the original Claim, even if, ideally, things might have been done more efficiently or expeditiously. [12] Mr Lawson’s evidence has been supplemented by other evidence tending to support the orders made. It was common ground that it was open to the plaintiff to place -- 6 of 8 -- 7 before the court new evidence for this purpose. There is a lengthy affidavit from the plaintiff Mr Carbone, who was eighteen when injured, working as a jackeroo for the defendant. While he was mustering cattle by motorcycle, in the process of trying to regather some young horses “which had broken away from the main mob”, he struck a log (allegedly placed where it was by the defendant) concealed by long grass. He is of the view that neck and back complaints are referrable to the injury and wishes to claim compensation for them. He reports advice from his present solicitors that the taking of steps to have neck and back injuries assessed by WorkCover with a view to incorporating them in the action could be deferred to await the outcome of this application (“I may not be able to proceed with my claim at all”). Mr Harding, representing Mr Carbone, acknowledged that his client might face problems arising from the Act in the future. I agree with him that they do not control the outcome of the defendant’s present application. [13] The other new evidence is an affidavit of Ms Murray, solicitor of Emerald (a faxed copy of which was used, on Mr Harding’s undertaking to file the original when available) exhibiting a lengthy “Preliminary Common Law Investigation Report” prepared for WorkCover by LKA Management Pty Ltd and dated 21 September 2005. It reports on extensive investigations that the company was able to make, and presumably over the period leading up to the date of the report. It is not necessary to invoke general knowledge to the effect that statements are likely to have been given, and witnesses identified in documentation generated at the time of a claim for workers compensation. The report contradicts any possible assertion of prejudice. Mr Grant Taylor appeared to be careful not to make such a suggestion, beyond reminding the court in general terms of the evils of delay as expounded, for -- 7 of 8 -- 8 example, in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 551. [14] The defendant’s application should be refused. It is not necessary to consider Mr Harding’s argument by reference to Bertram v Vanstone (2000) 173 ALR 63, at 68 and Rofa Sport Management AG & Anor v DHL International (UK) Ltd [1989] 2 All ER 743: “Once the stay is lifted, time for service once again commences to run with the effect, in the present case, being that: (a) it was not necessary for the respective Applications pursuant to r 24 of the UCPR to be made by the Plaintiff to enable valid service of the Claim; (b) even if the Orders of the Registrar renewing the claim are set aside, it does not follow that the proceeding should be dismissed.” [15] The application will be dismissed with costs. -- 8 of 8 --