Charlton v Prominora Pty Ltd [2006] QSC 236

SUPREME COURT OF QUEENSLAND CITATION: Charlton v Prominora Pty Ltd [2006] QSC 236 Charlton v S Employment Services Pty Ltd (in liquidation) and Work Cover Queensland PARTIES: GARY WALTER CHARLTON (Applicant) AND PROMINORA PTY LTD (in liquidation) (First Respondent) AND WORKCOVER QUEENSLAND (Second Respondent) GARY WALTER CHARLTON (Applicant) AND S EMPLOYMENT SERVICES PTY LTD (in liquidation) (First Respondent) AND WORKCOVER QUEENSLAND (Second Respondent) FILE NO/S: S51 of 2006 S308 of 2005 DIVISION: Trial Division PROCEEDING: Applications ORIGINATING COURT: Supreme Court DELIVERED ON: 20 June, 2006 DELIVERED AT: TOWNSVILLE -- 1 of 8 -- 2 HEARING DATE: 6 June 2006 JUDGE: Cullinane J ORDER: Applications dismissed with costs to be assessed. CATCHWORDS: LIMITATION OF ACTION – Where decision by the Industrial Magistrate removing obstacle to claim damages – whether such decision can be a material part of a decisive nature under s. 31 of the Limitation of Actions Act 1974 (Qld) Limitation of Actions Act 1974 (Qld) WorkCover Queensland Act 1996 (Qld) Do Carmo v Ford Excavations Pty Ltd (1983-1984) 154 CLR 234 Hamling v Australia Meat Holdings Pty Ltd [2005] QCA 415 cited Re: Sihvola [1979] QdR 458 Tanks v WorkCover Queensland [2001] QCA 103 COUNSEL: Mr A.T. Moon for the Applicant Mr S.C.Williams QC and Mr A.S. Mellick for the Respondent SOLICITORS: Connolly Suthers for the Applicant Boulton Cleary & Kern for the Respondent [1] These are two applications pursuant to s.31 of the Limitation of Actions Act 1974 as amended. [2] The Applicant was employed by the two respondent companies at the Yabulu Nickel plant. [3] For part of the relevant period he was employed by the Respondent Prominora Pty Ltd and for the balance by the Respondent S Employment Services Pty Ltd. He deposes that he had not been aware until after consulting legal advisors that he had been employed by both companies. The relevant period is from July 1999 to August 2000. [4] There is, it seems to me, evidence which satisfies the requirements of s.31(2)(b) contained in the report of Mr Kahler, an engineer, and there was no argument addressed by the Respondent to this issue. [5] The applications are unusual in the sense that what is relied upon in each case as a material fact of a decisive nature is a determination in the Applicant’s favour by a court of certain issues raised in a claim for statutory -- 2 of 8 -- 3 compensation by him. The decision was handed down on 15th July 2004 thus removing an obstacle under the Work Cover legislation to the institution of proceedings for damages by him. [6] On the 27th May 2005 this court ordered in proceedings 308 of 2005 Townsville (in which S Employment Services Pty Ltd and WorkCover Queensland are named as the Respondents) that pursuant to s.305 of the WorkCover Queensland Act 1996 the Applicant be granted leave to institute proceedings notwithstanding non-compliance with the requirements of Chapter 5 of the that Act. This order was made by consent. [7] No such order was made in any proceedings in which Prominora Pty Ltd was a Respondent. [8] The Applicant contended that the effect of such an order was to permit the institution of proceedings not only against S Employment Services Pty Ltd but also against Prominora Pty Ltd. [9] This it was said arose from the general terms in which s.305 is expressed and in particular the use of the term “proceedings” It provides as follows: “305.(1) Subject to section 303, the claimant may start the proceeding if the court, on application by the claimant, gives leave to bring the proceeding despite non-compliance with the requirements of section 280. (2) The order giving leave to bring the proceeding may be made on conditions the court considers necessary or appropriate to minimise prejudice to WorkCover from the claimant’s failure to comply with the requirements of section 280.” [10] In my view there is no basis for giving the section the construction contended for. The order under s.305 was made for the Applicant’s benefit in the proceedings against the Respondent S Employment Services Pty Ltd and WorkCover I was not referred to any authority and I am not aware of any principle which would permit the benefit of the order to be invoked against the Respondent Prominora Pty Ltd. It was accepted that, if this could not be done, the application against that Respondent must fail. [11] The Applicant made a claim for statutory compensation on or about 22nd July 2002. On or about 23 rd October 2002 the application for compensation was rejected on two grounds. Firstly that it was lodged outside the prescribed six months and as such was not a valid application and secondly, that the Applicant’s employment was not considered to be a significant contributing factor and there was thus no injury for the purposes of s.34 of the WorkCover legislation. [12] The Applicant sought a review of the decision by QComp and this was rejected on about 14th February 2003. [13] The Applicant then appealed and on 15th July 2004 the industrial magistrate set aside the decision of QComp and determined both issues in favour of the Applicant. -- 3 of 8 -- 4 [14] The Respondent argued that, as more than one year has elapsed after the Industrial Magistrate’s decision without any proceedings having been instituted, there is no power to extend time under section 31 of the Limitation of Actions Act. It contended that the court had no power to make the order under s.305 and it should not have been made. [15] As the Applicant was not able to institute proceedings leave was sought and obtained under s.305. Such an order can be made only within the limitation period. See Hamling v Australia Meat Holdings Pty Ltd [2005] QCA 415. [16] However, the order was made by consent. The effect of such an order is that the time within which to institute proceedings is extended under s.308, notwithstanding the expiration of the limitation period until at the latest 60 days after the holding of a compulsory conference. [17] The Applicant argues that having obtained such leave within one year of the material fact of a decisive nature relied upon coming within his means of knowledge, the court is able to make an order under s31 of the Limitation of Actions Act in his favour. [18] I am prepared to accept for the purposes of the application that the Applicant’s analysis is correct. There are it seems to me, more fundamental difficulties in his way. [19] Section 253 of the WorkCover Queensland Act provided (as it then stood) as follows: “253.(1) The following are the only persons entitled to seek damages for an injury sustained by a worker – (a) the worker, if the worker has received a notice of assessment from WorkCover stating that – (i) the worker has sustained a certificate injury; or (ii) the worker has sustained a non-certificate injury; or (b) the worker, if the worker’s application for compensation was allowed and the injury sustained by the worker has not been assessed for permanent impairment; or (c) the worker, if the worker has not lodged an application for compensation for the injury; or (d) a dependent of the deceased worker, if the injury sustained by the worker results in the worker’s death. (2) The entitlement of a worker, or a dependant of a deceased worker, to seek damages is subject to the provisions of this chapter. -- 4 of 8 -- 5 (3) To remove any doubt, it is declared that subsection (1) abolishes any entitlement of a person not mentioned in the subsection to seek damages for an injury sustained by a worker. [20] The Applicant contends that at all relevant times until the determination by the industrial magistrate in his favour he did not fall within any part of s.253 and had no right to seek damages. Upon that determination he fell within the provisions of s.253(1)(b). [21] There was an argument by the Respondent that the Applicant could have obtained a conditional damages certificate and institute proceedings prior to the time at which he obtained leave under s 305. [22] The Applicant on the other hand contended that in pursuing leave he acted reasonably and the fact that there may or may not have been alternative courses open should not affect matters. Because of the conclusion I have reached on the substantive issue it is not necessary to say anything about those matters except to observe that they serve to underline the difficulties in bringing this matter within the framework of Sections 30 and 31 of the Limitations of Actions Act. [23] The question then arises whether what is relied upon here is capable of constituting a material fact of a decisive nature for the purposes of the Act. [24] Sections 30 and 31 of the Limitation of Actions Act 1974 as amended provides respectively as follows: “Interpretation 30. For the purposes of this section and sections 31, 32, 33 and 34 – (a) the material facts relating to a right of action include the following— (i) the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded; (ii) the identity of the person against whom the right of action lies; (iii) the fact that the negligence, trespass, nuisance or breach of duty causes personal injury; (iv) the nature and extent of the personal injury so caused; (v) the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty; (b) material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing— -- 5 of 8 -- 6 (i) that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and (ii) That the person whose means of knowledge is in question ought in the person’s own interests and taking the person’s circumstances into account to bring an action on the right of action; (c) “appropriate advice”, in relation to facts, means the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts, as the case may require; (d) a fact is not within the means of knowledge of a person at a particular time if but only if – (i) the person does not at that time know the fact; and (ii) so far as the fact is capable of being ascertained by the person, the person has before that time taken all reasonable steps to ascertain the fact. Ordinary actions 31. (1) This section applies to actions for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) where the damages claimed by the plaintiff for the negligence, trespass, nuisance or breach of duty consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person. (2) Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court – (a) that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the Applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and (b) that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation; -- 6 of 8 -- 7 the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the Applicant in that court, the period of limitation is extended accordingly. (3) This section applies to an action whether or not the period of limitation for the action has expired – (a) before the commencement of this Act; or (b) before an application is made under this section in respect of the right of action. [25] Although s.30(a) is non inclusive the list of matters constituting a material fact strongly indicates that material facts are limited to those facts upon which a cause of action depends either totally or for a worthwhile result. [26] As Wanstall CJ put it in Re: Sihvola [1979] QdR 458 at p 464: “The fact on which the proposition rests is plainly not the kind of missing fact with which the legislative scheme deals in ss 30 and 31. Those two sections must be read together in the context of the whole statute and when so read, they do not permit of the introduction of a factor of this kind. The judicial approach in the English cases has consistently been to look for an ingredient-relationship between the missing fact and the cause of action.” [27] A little later at page 465: “The issuing of a writ presupposes knowledge, at least belief, by the plaintiff or his legal advisers that he can establish the cause of action alleged in his writ by proving the facts that are then within his knowledge. The antithesis of this proposition becomes the basic assumption of the scheme i.e. that he has not issued a writ because he lacked knowledge of some material fact on proof of which his cause depended either entirely or for a worthwhile result.” [28] In that case lack of knowledge of a limitation period was asserted as a material fact. [29] In Do Carmo v Ford Excavations Pty Ltd (1983-1984) 154 CLR 234 Dawson J speaking of an analogous provision said at page 258: “Whatever else may be said of this paragraph of the section it is clear to my mind that it categorises as decisive at least each of those facts which must be proved in order to establish a cause of action.” [30] In this case all matters of fact relevant to the Applicant’s cause of action were known to the Applicant well prior to the determination by the industrial magistrate. -- 7 of 8 -- 8 [31] The provisions of Chapter 5 of the WorkCover Queensland Act do not create a cause of action nor does the scheme contained in Chapter 5 requiring as it does certain pre-conditions to be satisfied before a cause of action can be enforced abolish the common law cause of action for damages or substitute a new one for it. See Tanks v WorkCover Queensland [2001] QCA 103. [32] In my view the determination of the industrial magistrate on 15 th July 2004 cannot satisfy the test of a material fact of a decisive nature for the purposes of ss 30 and 31 of the Limitation of Actions Act. What it did was to remove an obstacle to the enforcement of the cause of action. [33] The Respondent has raised certain discretionary matters in the event the Applicant otherwise brought himself within s 31. It is not necessary to express any concluded view in this. However I am inclined to think there is no substance in the matters raised. There is in my view no evidence of prejudice of any kind. The cause of action is based upon the system of work said to be in place during the whole period. One can infer that the Respondent should be in a position to meet such a claim. [34] The first Respondent is in liquidation but there is no reason or to believe the records are unavailable. Similarly I think the suggested difficulties in addressing the issue of damages are purely speculative. [35] The applications are dismissed with costs to be assessed. -- 8 of 8 --