Berger v Australian Monofil Co Pty Ltd & Anor [2005] QSC 186

State Reporting Bureau (5005] QsC I £6 Queensland Government Department of Justice and Attorney-General Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION FRYBERG J No BS 2448 of 2005 KARL-HEINZ ALBERT BERGER Plaintiff . and AUSTRALIAN MONOFIL CO PTY LTD First Defendant and DRAKE AUSTRALIA PTY LTD Second Defendant BRISBANE . .DATE 09/06/2005 JUDGMENT REVISED COPIES ISSUED State Reporting Bureau Date: 28 June, 2005 t/ARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal ffence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for leir protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those ategories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. 1 h Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 3247 4360 Fax: (07) 3247 5532 -- 1 of 11 -- HIS HONOUR: This is an application by the first defendant to set aside the plaintiff's claim pursuant to Rule 16 of the Uniform Civil Procedure Rules. The claim is brought by the plaintiff against two defendants and in it the plaintiff alleges that either or both of those defendants were, at the time he. suffered personal injury through their negligence, his employer. Although the point is not totally clear on the face of the statement of claim, it has been made explicitly clear by counsel before me that the only liability which it is sought to sheet home to either or both defendants is liability as an employer, and that, in the event that the plaintiff fails at trial to prove that a defendant was at the relevant time his employer, the claim cannot succeed against that defendant. The plaintiff has, before bringing this claim, complied with the requirements of the WorkCover Queensland Act 1996 insofar as those obligations upon him relate to WorkCover Queensland. However, the applicant submits that the obligations that are material are more extensive than those which are imposed by the Act in relation to WorkCover. It submits that the obligations extend not only to WorkCover but also to the employers who are the defendants in the action. It asserts that the proceedings should be set aside because the plaintiff has not complied with Part 6 of Chapter 5 of the Act. Section 302 provides so far as material, "The claimant may start a proceeding in a Court for damages only if the claimant has complied with: ... (c) Part 6." 09062005 T15/CAL8 M/T 2/2005 (Fryberg J) 1 10 20 30 40 50 2 JUDGMENT 60 -- 2 of 11 -- It is common ground that if the plaintiff has not complied with Part 6, the effect of that section is to render the claim a nullity and it follows from that, in my judgment, that if the claim is a nullity it should be set aside. I note arguments addressed on behalf of the plaintiff that r 16 is an inappropriate rule to apply in this case because it is related only to want of jurisdiction. In its terms, r 16 is not expressly limited to cases where there is a want of jurisdiction. In any event, whatever the rule that ought to be invoked should be, I would be disposed to strike out the claim if a non-compliance with s 302 were demonstrated. For the applicant, Mr Eliadis submitted that the procedure at the compulsory conference required to be following by s 293A was not followed and that the offers required to be made under s 294 were not made in relation to the present applicant. In the view I take of matters, I am prepared to assume in the applicant's favour that any disputed matters of fact are resolved in favour of the applicant. The question is whether the claimant (i.e. the plaintiff) was under an obligation to do anything with regard to the present applicant. Mr Smith, for the plaintiff, first submitted that even if the plaintiff were obliged to do anything with respect to the applicant, WorkCover was statutorily made the agent of the applicant by reason of s 305 of the Act. In my judgment that argument is unsustainable. Section 305 does not impose an agency, as such, and, in any event, it is concerned only . 09062005 T15/CAL8 M/T 2/2005 (Fryberg J) 3 JUDGMENT 1 10 20 30 40 50 60 -- 3 of 11 -- 1 with the conduct of Court proceedings, not with proceedings prior to the initiation of Court proceedings. The real question is what is meant by the word "party" and its plural form in part 6 of chapter 5. To resolve that question it is necessary to have regard, first, to part 5 of the Act. I was not referred to parts 1 to 4 and I assume that they contain no provisions material to the resolution of this dispute, save for the definition of "claimant" in section 233. "Claimant" means a person entitled to seek damages. Section 279 provides: "The object of part 5 is to facilitate the just and expeditious resolution of the real issues in a claim for damages at a minimum of expense ." Section 279A(2) provides: "A party impliedly undertakes to other parties to proceed in an expeditious way." Those provisions suggest that the Act in this area envisages more than two parties to a claim and that it is referring to a claim for damages, such as is the subject of the present proceedings. The same impression is given by s 280. Subs (1) provides that before starting a proceeding in a Court for damages, a claimant must give notice under that section. The proceeding for damages that is referred to is one which must be brought against the employer and not against WorkCover, which further suggests that in this part the employer is seen as a party to the claim: see s 306(1). Subs 280(2) requires 09062005 T15/CAL8 M/T 2/2005 (Fryberg J) 10 20 30 40 50 4 JUDGMENT 60 -- 4 of 11 -- 1 the claimant to give a notice of claim to WorkCover and to give a copy of it to his employer and, by subs (6), that notice must be accompanied by a genuine offer of settlement or a statement of the reasons why and offer of settlement cannot be made. It is worth noting at this point that the reference to the accompanying document suggests that the offer is made not in the notice of claim but, rather, with it, and that there is no obligation to give the accompanying offer to the employer; only to WorkCover. The notice must also be accompanied by the claimant's written authority, allowing WorkCover to obtain information about certain specified things and again it would not seem necessary that that accompanying document be given to the employer. That, however, does not detract, necessarily, from the appearance that the employer is a party referred to in the earlier provisions. Section 280A at the relevant time provided what was to happen in the event of non-compliance and in urgent cases and has no immediate bearing upon the present proceedings. It does not seem to affect the employer in any direct way but, rather, regulates matters as between the claimant and WorkCover. Section 281 imposes obligations on the claimant in relation to WorkCover. Section 282 imposes obligations on WorkCover in relation to the claimant . It is worth noting that, within seven days after receiving a complying notice of claim or waiving non-compliance with the 09062005 T15/CAL8 M/T 2/2005 (Fryberg J) 10 20 30 40 50 5 JUDGMENT 60 -- 5 of 11 -- 1 requirements of s 280, WorkCover must advise the employer or employers - plural - against whom negligence is alleged. Precisely what it has to advise them is not expressly stated, but presumably it must advise them of those facts . That provisions again seems, to me, reasonably neutral on the point now in issue. 09062005 T15/CAL8 M/T 2/2005 (Fryberg J) 10 Section. 283 imposes obligations on both the claimant and WorkCover to cooperate and it does not impose any obligations on or give any rights to the employer. 20 Section 284 imposes an obligation on the employer to cooperate with WorkCover, but does not impose a like obligation on it to cooperate with the claimant, nor does the claimant have any obligation to cooperate with the employer under this part. 30 Under s 285, the claimant and WorkCover must endeavour to resolve the claim. An elaborate procedure is there set out. Provision is made for copies of notice to be given to the employer - see subs (5) - but the employer has no say in what 40 WorkCover does in resolving the claim. One then passes to Part 6. That begins with s 292 which provides that the division, that is Division 1 of Part 6, does not apply to a claim that is otherwise settled by negotiation 50 between the parties. Parties, therefore, again seems to refer to the parties to the claim. Subsection 293 (1) provides that before the claimant starts a 6 JUDGMENT 60 - -- 6 of 11 -- proceeding for damages there must be a conference of the parties. Subsection (2), immediately following those words, provides that either party may call the compulsory conference. The significant element here is the reference to either party. It seems to suggest that for the purposes of this section the Act envisages reference only to two parties. Subsection 5 obliges WorkCover to advise the worker's employer of the time and place of the compulsory conference but nothing in the section provides a right in the employer to attend the conference. It is an open question which I need not resolve for present purposes whether the employer has any right to attend the conference if not invited to do so by one or other of the participants, that is, the claimant or WorkCover. Subsection 6 makes provision for a party to apply to the Court to fix a compulsory conference but is neutral on the question whether the term "party" includes the employer. Subsection 7, which was particularly relied' upon by Mr Smith on behalf of the plaintiff, refers to a matter which the Court must take into account on such an application (that is on an application to dispense with a compulsory conference) . It provides that the Court must take into account the extent of compliance by the parties with their respective obligations in relation to the claim. In itself that is neutral as to whether the term "parties" comprehends the employer, but Mr Smith submitted that when one looked to what those obligations were they were meaningfully only upon WorkCover and the 09062005 T16/PMB19 M/T 2/2005 (Fryberg J) 1 10 20 30 40 50 7 JUDGMENT 60 -- 7 of 11 -- claimant. That is substantially so although, as I have pointed out, s 284 does impose an obligation on the employer to cooperate with WorkCover. Section 293(8) provides that the claimant, in person, and a person authorised to settle on WorkCover ' s behalf must attend the conference and actively participate in an attempt to settle the claim unless there is reasonable excuse to the contrary. It is noteworthy that there is no obligation on the employer to do either of those things and, as I have said, it is unclear whether the employer even has a right to participate. Subsection 9 provides that if it would be unreasonable for all parties to attend at the same place other forms of communication may be used. The reference to all parties suggests that subs (9) envisages that there may be more than two parties and that tends to negate the suggestion in subs (2) that the section is referring only to WorkCover and the claimant . In its present form s 293 was inserted in the Act, intact, in 2001 and subs (9) did not have a genesis different from subs (2), at least in so far as the history of the Act has been provided to me. Sitting, as I am, in the applications jurisdiction I do not have the opportunity to research the history of any predecessor of s 293 as then enacted. The procedure at the conference is covered by s 293 A and, 09062005 T16/PMB19 M/T 2/2005 (Fryberg J) 1 10 20 30 40 50 8 JUDGMENT 60 -- 8 of 11 -- 1 again, there are extensive references suggesting that the word parties refers only to two parties. Subsection (1) uses the expression "both parties". Subsection (4) refers to "either party". Subsection 5(a) refers to "the other party". Subsection 8 provides for WorkCover to give a copy of certificates of readiness to the employer. The actual obligations which are imposed are to provide copies of documents to the other party before the compulsory conference, subs (5), to provide a certificate of readiness - subs (5) and subs (6) - and in the event that a financial statement is needed to provide that, subs (6) and subs (7). Section 293B provides for the financial statement by a lawyer to a party. Section 294 provides firstly that if the claim is not settled at the conference "each party" must make a written final offer at the conference. If the claimant brings a proceeding in a Court for the claim he must, at the start of the proceeding, file a sealed envelope containing a copy of his offer and WorkCover must, after being served with the legal process that starts the proceeding, filed a sealed envelope containing a copy of its offer. The employer is not obliged to do any of those things and it is difficult to envisage that the employer would be required to make a written final offer under that section. That seems to be the extent of the references material to the question. In my judgment the question must be resolved in the light of those references in favour of the view espoused by the 09062005 T16/PMB19 M/T 2/2005 (Fryberg J) 10 20 30 40 50 9 JUDGMENT 60 -- 9 of 11 -- 1 plaintiff. I adopt that view because to impose the obligations referred to in ss 293A and 294 in respect, not only of WorkCover, but also in respect of the employer would be futile. The employer does not have the carriage of proceedings and has no authority to make a final offer and there would be little benefit in the employer independently of WorkCover signing a Certificate of Readiness. I need not decide whether the word "party", in Part 5 is wider or, at least, in some of the sections of Part 5, is wider than it is in Part 6, although one would be inclined to avoid that consequence if possible. It may be that some of the references to multiple parties exist to deal with the situation where if it is possible multiple claims are made by two or more workers or two or more persons in respect of the one worker. Again, I need not have regard to that because it may simply be that the drafting is defective. Whatever the reason, it seems to me that the obligations under ss 293A and 294 are imposed only upon the claimant and WorkCover. That being so, it follows that the claimant has not committed any breach of s 302. For the applicant, Mr Eliadis submitted that this produced an absurd result in that his client, like any employer, could in effect be left out in the cold. But it must be remembered that these hoops are put into the Act for claimants to jump through in order to assist WorkCover and until they were put there, employers were vulnerable to actions by claimants without any of these benefits. It is not easy to see why the 09062005 T17/EAM24 M/T 2/2005 (Fryberg J) 10 20 30 40 50 10 JUDGMENT 60 -- 10 of 11 -- Act should be intended to benefit employers rather than WorkCover which has the carriage of proceedings . I do not overlook the fact that WorkCover has refused to indemnify the first defendant. That does not, in my judgment, leave the first defendant exposed. Either the plaintiff will succeed against the first defendant, in which case WorkCover will be ultimately obliged to indemnify it (and I was told that the first defendant would be commencing third party proceedings against WorkCover in the event that it did not succeed today), or the plaintiff will fail against the first defendant, in which case it is of course not exposed to damages. For these reasons, in my judgment, the application should be dismissed. 09062005 T17/EAM24 M/T 2/2005 (Fryberg J) HIS HONOUR: Orders for costs will be: I order the applicant/first defendant to pay the plaintiff's costs to be assessed on the scale appropriate to the amount finally recovered by the plaintiff. I order that the costs of the second defendant as against the first defendant be reserved. 1 10 20 30 40 50 11 JUDGMENT 60 -- 11 of 11 --