Facer v WorkCover Queensland & Anor [2005] QDC 25

DISTRICT COURT OF QUEENSLAND CITATION: Facer v. WorkCover Queensland & Anor [2005] QDC 025 PARTIES: EDWARD GEORGE FACER (Applicant/Defendant) Ats WORKCOVER QUEENSLAND (Respondent/Plaintiff) And ALLAN LOVELL (Third party) FILE NO/S: 627 of 2003 DIVISION: Civil PROCEEDING: Chamber application ORIGINATING COURT: District Court DELIVERED ON: 7 February 2005 DELIVERED AT: Brisbane HEARING DATE: 11 October 2004 JUDGE: Tutt DCJ ORDER: 1. The applicant’s application filed 23 September 2004 insofar as paragraphs 1 and 2 are concerned is dismissed; 2. The respondent’s cross-application (as amended) filed by leave is dismissed; 3. That pursuant to r 320 of the UCPR this proceeding be referred for mediation and in respect thereof I make the following directions: (i) That the applicant and respondent respectively exchange a panel of three (3) mediators within fourteen (14) days from the date of this order of whom one (1) shall be selected to conduct the mediation pursuant to Part 4 of Chapter 9 of the UCPR; (ii) That the notice of the time and place of such mediation and all other agreed details set out in r 323 of the UCPR to conduct a proper mediation together with a copy of this order be served upon the third party; (iii) That the costs of such mediation be borne equally by the applicant, respondent and third party respectively; and -- 1 of 7 -- 2 4. That the costs of this application and cross- application be costs in the cause. CATCHWORDS: Application for striking out part of Amended Reply – cross- application to dispense with signature on request for trial date – claim by WorkCover to recover compensation and damages from employer – “worker” or “independent contractor” – referral to mediation. WorkCover Queensland Act 1996 (Qld) s. 61. Uniform Civil Procedure Rules 1999 (Qld) Part 4 Chapter 9. Trelour v J H McDonald Pty Ltd [2001] QDC 053. COUNSEL: Dr D H Katter for the applicant. Mr G Beecham for the respondent. SOLICITORS: Patane Hall for the applicant. Corrs Chambers Westgarth for the respondent. Introduction [2] The applicant/defendant (“the applicant”) filed an application in this proceeding on 23 September 2004 seeking the following orders: 1. That paragraph 3(c) of the respondent/plaintiff’s (“the respondent”) Amended Reply dated 28 July 2004 be struck out; 2. That further or in the alternative the respondent provide Further and Better Particulars requested in correspondence from the applicant’s solicitors to the respondent’s solicitors; 3. That the matter be referred for mediation; 4. Such further or other orders as the Court may deem necessary; and 5. Costs. [3] The respondent filed a cross-application on 1 October 2004 and subsequently gave notice of an amended application dated 8 October 2004 to include the third party in -- 2 of 7 -- 3 the relief sought in addition to the applicant (defendant in the original proceeding) wherein the respondent seeks various orders including: 1. That the Court dispense with the requirement that the applicant and the third party execute a request for trial date; 2. That the matter be set down for trial; 3. Such further or other orders as the court may deem necessary; and 4. Costs. [4] I shall deal with both applications in these reasons. The Claim [5] The claim is one where the applicant, who is an employer under the WorkCover Queensland Act 1996 (Qld) (“the Act”), is being sued by the respondent which is the workers’ compensation insurer of the applicant under the Act. [6] The claim is for alleged unpaid premiums which the applicant should have paid to the respondent in accordance with his obligations as an employer under the Act to insure against his legal liability for statutory compensation payable to an injured worker and for any damages which may become payable to an injured worker at common law in respect of any legal liability therefor. [7] The respondent pleads in its statement of claim that the applicant is an employer and that in its capacity as the compulsory insurer under the Act for the payment of statutory compensation and damages to any injured worker of an employer it paid to a worker of the applicant namely, Deena Hurrell, the sum of $37,759.02 by way of -- 3 of 7 -- 4 statutory compensation and damages for which the applicant is now liable to pay to the respondent pursuant to his obligations under s61 of the Act. [8] The applicant defends the claim essentially on the basis that he was not the employer of the worker referred to in the pleadings and was therefore not obliged to insure against any liability for statutory workers compensation and/or damages which the worker has received from the respondent under the Act. [9] On the 29 September 2003 McGill SC DCJ granted the applicant leave to file and serve third party proceedings against the applicant’s accountant, Alan Lovell, seeking among other things an indemnity and/or contribution in respect of the respondent’s claim against the applicant together with costs of those proceedings. [10] A defence to those proceedings has been filed by the third party on 3 November 2003. [11] Since that time there have been further amended pleadings filed by the respondent particularising its defence of the applicant’s claim and substituting the term “worker” for “employee” in its original statement of claim. I would regard this amendment as a mere technicality to coincide with the terminology of the Act. [12] The Court was further advised that the applicant and respondent but not the third party, have engaged in some negotiations to attempt to resolve the matter but those negotiations have not been successful. -- 4 of 7 -- 5 [13] In addition the applicant’s solicitors seem to have conducted quite a deal of legal “jousting” with the respondent’s solicitors seeking further particulars of the respondent’s claim as contained in correspondence to the respondent’s solicitors on 16 August 2004 and 30 August 2004 to which the respondent’s solicitors responded by their correspondence of 23 August 2004 and 3 September 2004 respectively. [14] In my opinion the issues in this proceeding are clear-cut and do not need further particularisation or debate for all parties to be fully aware of the issues to be determined. [15] I note the respondent’s submission that it resists an order that this matter be mediated on the basis that the third party has refused to attend mediation and that the informal attempts by the applicant and respondent to negotiate a settlement of the claim have failed. [16] I am firmly of the opinion that neither ground is a valid one to resist mediation particularly the first. [17] Unfortunately for him the third party is a party to this proceeding whether he likes it or not and must comply with the rules of litigation or suffer the consequences of his obstructionism. -- 5 of 7 -- 6 [18] As indicated at the hearing of this application1 the use of Alternative Dispute Resolution procedures is not only prescribed under the UCPR but is a most practical method of bringing the parties to a dispute together with an independent and experienced legal mind to isolate the issues and to encourage and assist all parties to strive to resolve their differences in a less formal and less costly environment than would be the case if the dispute proceeded to trial. The remarks of Robertson DCJ in Trelour v J H McDonald Pty Ltd [2001] QDC 053 at paragraph [14] are most apposite and relevant. [19] In all the circumstances my orders in this matter will be as follows: 1. The applicant’s application filed 23 September 2004 insofar as paragraphs 1 and 2 are concerned is dismissed; 2. The respondent’s cross-application (as amended) filed by leave is dismissed; 3. That pursuant to r 320 of the UCPR this proceeding be referred for mediation and in respect thereof I make the following directions: (i) That the applicant and respondent respectively exchange a panel of three (3) mediators within fourteen (14) days from the date of this order of whom one (1) shall be selected to conduct the mediation pursuant to Part 4 of Chapter 9 of the UCPR; (ii) That the notice of the time and place of such mediation and all other agreed details set out in r 323 of the UCPR to conduct a proper mediation together 1 Transcript page 20 lines 45-56. -- 6 of 7 -- 7 with a copy of this order be served upon the third party; (iii) That the costs of such mediation be borne equally by the applicant, respondent and third party respectively; and 4. That the costs of this application and cross-application be costs in the cause. -- 7 of 7 --