Cox v Gay Constructions Pty Ltd [2002] QDC 336

DISTRICT COURT OF QUEENSLAND CITATION: Cox v Gay Constructions Pty Ltd [2002] QDC 336 PARTIES: STEPHEN WAYNE COX and GAY CONSTRUCTIONS PTY LTD FILE NO/S: D1337 of 2001, Brisbane DIVISION: District Court of Queensland PROCEEDING: Application DELIVERED ON: 27 August 2002 DELIVERED AT: Southport HEARING DATE: 24 July 2002 JUDGE: Alan Wilson SC DCJ ORDER: 1. Application dismissed 2. Applicant to pay respondent’s costs of and incidental to the application, assessed on the standard basis CATCHWORDS: WORKERS’ COMPENSATION – PRELIMINARY REQUIREMENTS – DETERMINATION OF CLAIMS STATUTES – INTERPRETATION – meaning and effect of WorkCover Queensland Act (1996) ss 280, 304 and 308 WorkCover Queensland Act (1996) Cases considered: Saw v Parkside Holding Pty Ltd (Supreme Court Rockhampton, 8 December 2000, 226/2000) Scott v WorkCover (Queensland) (Supreme Court Brisbane, 20 November 2000, 9077/2000) Bonser v Melnacis [2002] 1 Qd R 1 -- 1 of 9 -- 2 COUNSEL: Mr T C Somers for the applicant Mr R Alldridge for the respondent SOLICITORS: Keller Nall & Brown McInnes Wilson Lawyers The Issues in the Application [1] The applicant plaintiff Mr Cox says he was injured in the course of his employment with the respondent on 25 March 1998 and, on that day, he completed and lodged an Application for Compensation with WorkCover Queensland. No affidavit was filed by Mr Cox but his solicitor, Mr Collinson, says Mr Cox first instructed him in relation to the matter on or about 17 March 1999. The Solicitor began an action on the applicant’s behalf in this court on 22 March, 2001 (ie, just within the three year time limit). The respondent’s defence raises serious technical objections to the maintenance of the action and in this application the plaintiff seeks, in effect, orders excusing noncompliance with the requirements of chapter 5, part 6 of the Act and a declaration that his action in this Court is not statute barred. [2] The defence filed 26 April 2001 contains this plea: “8. The Defendant alleges that the Plaintiff’s claim is statute barred. The Defendant says that the Plaintiff has failed to comply with the requirements of Section 302 of the WorkCover Queensland Act 1996 in order to start these proceedings. The Defendant further says that the limitation period prescribed by the Limitation of Actions Act 1974 has now expired.” [3] In his first affidavit 1 Mr Collinson says that it was not until 2 February 2001 that he spoke to Kim Bosanko of WorkCover seeking advice about “…the procedures that need to be followed prior to the instigation of proceedings”. He says he was told to obtain a “damages certificate” and, if one was not available before the expiration of the time limit, a Notice of Assessment should be annexed to the statement of claim. 1 Filed 18 July 2002 -- 2 of 9 -- 3 He sent an Application for a Damages Certificate to WorkCover’s Brendale office. [4] He received no response and on 22 March 2001 filed the claim and statement of claim in these proceedings. Mr Collinson also deposes that on 1 May 2001, after he received the defence, he spoke with Natalie Erskine of WorkCover and, essentially, asked the same questions he had directed to Kim Bosanko and, he swears, received the same answers. [5] Much of the affidavit material was taken up with the identity of the persons to whom Mr Collinson may have spoken, and what they told him. Affidavits from various WorkCover employees 2 addressed these issues, but ultimately little turns upon the matters they raise. The applicant did not contend that any advice Mr Collinson might have received from WorkCover’s officers estopped WorkCover from relying upon the provisions of the Act and it was only submitted, rather, that they were relevant to a discretion the Court has under s 304(2), which provides: “304 Court to have made declaration about noncompliance (1) Subject to section 303, the claimant may start the proceeding if the Court, on application by the claimant dissatisfied with WorkCover’s response under s 282 to a notice of claim declares that- (a) notice of claim has been given under s 280; or (b) the claimant is taken to have remedied noncompliance with the requirements of s 280 (2) A declaration that a claimant is taken to have remedied noncompliance with s 280 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 s 280.” [6] In particular, the applicant specifically abandoned any reliance upon advice received from WorkCover officers by Mr Collinson on the telephone as sufficient to establish estoppel in pais, i.e. as sufficient to excuse compliance with chapter 5, 2 Christine Dwyer, Dean Cadet, Jane Raspotnik, Natalie Eason, Kim Bosanko, and Natalie Erskine -- 3 of 9 -- 4 part 6 of the Act. In his supplementary written submissions 29 July 2002 the applicant’s Counsel, Mr Somers, said: “15. Whilst neither of these factors are sufficient to establish “estoppel against statute” it is submitted that they are sufficient to warrant the Court exercising its discretion under 304(2) to waive compliance with s 280.” [7] Relevantly, too, no reply has ever been delivered to the defence alleging, for example, some estoppel in respect of paragraph 8, which pleads the limitation statute. Even if the disputes which appear from the affidavits filed for both parties about the identity of the persons Mr Collinson contacted, what he asked, and what he was told are, hypothetically, resolved entirely in his favour, nothing in them suggests any promise from any WorkCover officer that WorkCover’s rights to require, in any future claims or proceedings, full compliance with the legislation were waived, or would not be exercised. [8] Mr Collinson is a solicitor. The only reasonable conclusion to be drawn from his affidavits is that, in the course of acting for the applicant he chose not to consult the legislation itself but, instead, to attempt to determine what steps were necessary to protect and advance his client’s interests by ringing WorkCover. Nothing in his affidavit suggests he determined whether or not the officers with whom he spoke were legally qualified and, significantly here, it does not appear he ever suggested to those officers that he proposed relying upon what they told him absolutely, and not consulting the Act or, eg, taking counsel’s advice. History of the Claim [9] On the day of his accident, 25 March 1998, the applicant sent an Application for Compensation to WorkCover which, it appears, complied with chapter 3, part 5 3 . On about 24 August 2000 WorkCover issued the applicant with a Notice of Assessment under s 203, offering lump sum compensation of $1,940.00. As that 3 S 159 -- 4 of 9 -- 5 Notice clearly indicates, the applicant was required to make an election about it but, as is not in issue, WorkCover did not receive notice of the applicant’s election within the relevant period and, on 1 February 2001 wrote to him (at his solicitor’s address) advising that in the absence of an election he was taken to have deferred his decision. [10] In chronological terms, the next formal step taken by the applicant was the service, at WorkCover’s Brendale office, of an application for a damages certificate. This application is relevant in certain circumstances mentioned in s 253 but was not appropriate or necessary here. Rather, what the applicant’s solicitor should have been doing was pursuing steps under chapter 5, part 5 and, in particular, attending to compliance with s 280 (Notice of claim for damages) and, at the late stage he was attempting to advance this client’s claim, perhaps taking steps under s 280A which is designed to expedite the entire pre-action process. [11] None of that occurred and, instead, the applicant commenced this action on 22 March 2001. The Application [12] The applicant had not satisfied the conditions of chapter 5, part 7 before starting his proceedings. Under s 302 he may start an action only if he has complied with the relevant provisions under part 2 (Entitlement) and part 5 (other than as provided by ss 304 and 305) and part 6 (procedures to settle claims), and s 303. No argument was addressed to part 2 but there can be no doubt, and the applicant concedes, he has not complied with part 5 (pre-Court procedures) including, in particular, the lodgement of the notice of claim for damages required by s 280. [13] I do not think s 304 affords the applicant any prospect of relief. The declaratory relief it mentions is only available if there has been compliance with s 303, which provides: -- 5 of 9 -- 6 “303 Claimant to have given complying notice of claim or WorkCover to have waived compliance The claimant may start the proceeding if any of the following have happened- i.at least 6 months or, for a terminal condition, 3 months have elapsed after- 1. the claimant has given, or is taken to have given, a complying notice of claim; or 2. WorkCover has waived the claimant’s noncompliance with the requirements of section 280 with or without conditions; or 3. the court has made an order under section 304 or 305. (c) WorkCover has admitted liability, but is claiming contributory liability from the claimant or another party, and the claimant has given WorkCover written notice that the extent of the admissions is disputed; (d) WorkCover has admitted liability but damages can not be agreed.” The only part of this section which could apply in the present circumstances is 303(a)(iii) and, at the time the action was commenced, no order had been made under ss 304, or 305. The phrase which commences s 304(1) makes it clear that, absent one of the events in s 303 within the limitation period (and see, too, s 280(1)), it has no application. Even if that phrase is ignored, s 304 cannot have any application here because the plaintiff is not a party ‘…dissatisfied with WorkCover’s response under section 282 to a notice of claim…’. [14] S 305 is, similarly, subject to the provisions of s 303 and would also afford the applicant no relief. What Mr Collinson should have done was use s280A, which would have allowed the Notice of Claim process to be accelerated and which has the stated purpose of enabling a claimant to avoid the need to apply under s 305: s 280A(1). [15] S 308 provides: “308 Alteration of period of limitation -- 6 of 9 -- 7 (1) A claimant may claimant may bring a proceeding for damages for personal injury after the end of the period of limitation allowed for bringing a proceeding for damages for personal injury under the Limitation of Actions Act 1974 only if- i.before the end of the period of limitation- 1. the claimant gives, or is taken to have given, a complying notice of claim; or 2. the claimant gives a notice of claim for which WorkCover waives compliance with the requirements of section 280 with or without conditions; or 3. a court makes a declaration under section 304; or 4. a court gives leave under section 305; and (b) the claimant complies with section 302. (2) However, the proceeding must be brought within 60 days after a compulsory conference for the claim is held.” No declaration or order under ss 304, or 305 was sought or made before the end of the limitation period. Again, the application meets an apparently insurmountable statutory hurdle. [16] The applicant submitted the decision of Dutney J in Saw v Parkside Holding Pty Ltd (Supreme Court Rockhampton, 8 December 2000, 226/2000) supported its argument under s 308. In that case the applicant had submitted a notice of claim under s 280 which WorkCover had ultimately deemed to be compliant. The applicant then applied under s 305 out of an abundance of caution following the decision in Scott v WorkCover (Queensland) (Supreme Court Brisbane, 20 November 2000, 9077/2000), which concerned the validity of the form then being used and which had, subsequently, been replaced. Dutney J held that once compliance had been waived, the limitation period was effectively extended under s 308, because of the provisions of s 308(1)(a)(ii) so no further order was necessary. That is quite different from the position of this applicant, who never submitted a Notice of Claim, and the case does not assist him. -- 7 of 9 -- 8 [17] It follows the applicant meets an absolute statutory bar, in the circumstances in which he finds himself, wherever he turns. [18] It is appropriate to record, however, that even if I had been persuaded otherwise, the grounds upon which he purports to seek a dispensation would not prevail. His Counsel Mr Somers relied upon the absence of any prejudice to WorkCover, in light of the earlier notice it had of the claim, and upon what is called, in his written submissions “…evidence of complicit behaviour by the staff of WorkCover leading to noncompliance with the Act…”; but both are, in terms of the strict requirements in the legislation, irrelevant. An employee’s right to claim damages for personal injuries suffered in the course of employment has now, effectively, been abolished and replaced with a right which only comes into existence upon compliance with the steps prescribed by the Act: Bonser v Melnacis [2002] 1 Qd R 1, at 13-4. Non- compliance simply prevents the right to commence proceedings from accruing, and I do not see how questions of prejudice can, in the circumstances and history of this matter, be material. [19] There are, as s 304(2) shows, some circumstances in which prejudice can be a relevant issue but only in the context of the pre-proceedings arena. I do not see how they can affect an applicant’s rights, or those of WorkCover, in the instance of proceedings which are brought in circumstances the Act proscribes. For the sake of completeness, however, it is also appropriate to record that, if this construction of these parts of the Act is wrong I would not, in any event , consider the prejudice upon which the applicant purports to rely sufficient to excuse his non-compliance. While the legislation is complex, some things stand out like beacons including, in particular, that s 280 makes a notice of claim mandatory before action. The fact an earlier document alerted WorkCover to a possible claim carries little weight in the face of these statutory injunctions. The solicitor’s queries to WorkCover were inappropriate and, as the affidavits suggest, either confused or confusing – a possibility which is readily accepted when, as seems apparent, the lawyer had not consulted the legislation before making them; and, again, are matters of little -- 8 of 9 -- 9 moment. The fact the consequences are, for the applicant, dire, is troubling but it seems likely he has a remedy elsewhere. [20] The application is dismissed. The applicant must pay the respondent’s costs of and incidental to it, assessed on the standard basis. ----- -- 9 of 9 --