Daley v Brisbane City Council [2002] QDC 211

DISTRICT COURT OF QUEENSLAND CITATION: Daley v Brisbane City Council [2002] QDC 211 PARTIES: BRENDON JOHN DALEY Applicant/Plaintiff v BRISBANE CITY COUNCIL Respondent/Defendant FILE NO/S: D281 of 2000 DIVISION: Civil jurisdiction PROCEEDING: ORIGINATING COURT: Brisbane DELIVERED ON: 26 July 2002 DELIVERED AT: Brisbane HEARING DATE: 27 June 2002 JUDGE: Forde DCJ ORDER: 1. The time for service of the proceedings in D4861 of 1999 and D281 of 2000 be extended for seven (7) days from the date of this judgment pursuant to section 306(3)(b) of the WorkCover Queensland Act 1996. 2. Actions D 4861 of 1999 and D 281 of 2000 are consolidated. 3. Costs are costs in the cause. CATCHWORDS: Acts Interpretation Act (Qld) 1954 s 24AA Statutory Instruments Act 1992 WorkCover Queensland Act 1996 ss 252, 253, 256, 262-265, 270, 280, 304, 306, 342. Workers’ Compensation Act 1990 184D Bonser v. Melnacis (2002) 1 Qd. R. 1 applied Coote v. Gas Corporation of Queensland Limited (unreported 429 of 1998, McGill S.C., D.C.J. 7 May 1998 followed. Day Ford Pty Ltd. v. Sciacca (1990) 2 Qd R 208 applied Gray v WorkCover and Anor. (2000) QSC 418 unreported decision of Holmes J 22.11.00 referred to Green v. Suncorp Metway Ltd. and Ors. (673 of 2000 an unreported decision of Shepherdson J. 8 February 2000) referred to -- 1 of 31 -- 2 Jackel v. Sital Queensland Pty. Ltd. and Anor. D348 of 1999 unreported 25 February 2000 McGill S.C. D.C.J. referred to Lankeet, In re an application, unreported White J, 11 March 1999 Lau v WorkCover Queensland [2002] QCA 244 unreported 19 July 2002 Neuss v Roche Bros C.A. 9447/99 unreported 13 June 2000, Nigel Watts Fashion Agencies Pty Ltd v GIO General Ltd B.L. 9403457 Court of Appeal NSW Unreported 22 December 1994 Re Robinson OS 11614 of 1998 unreported judgment of Williams J 29 January 1999 Stemp v WorkCover (unreported 4549 of 1999, Boyce Q.C., D.C.J. 23 June 2000) The Commonwealth v. Verwayen (1990) 170 CLR 394 Till v. The Nominal Defendant Court of Appeal No.2676 of 1999 unreported 26 November 1999 referred to COUNSEL: Ms D. Skennar for the Applicant/Plaintiff Mr A. Stobie for the Respondent/Defendant SOLICITORS: TK Delaney & Co for the Applicant/Plaintiff Brisbane City Legal Practice for the Respondent/Defendant Introduction [1] This is an application under section 306(3)(b) of the WorkCover Queensland Act 1996 (the “1996 Act”) by Brendon John Daley (“the Applicant”) to extend the time from 60 days as provided for in s 306(3)(a) of the 1996 Act ( the “1996 Act”) in which to serve the Brisbane City Council (“the Respondent”) with the proceedings. A further order is sought to consolidate action D4861 of 1999 and D281 of 2000. The Applicant, Brendon John Daley, is the plaintiff in actions D4861 of 1999 and D281 of 2000. In each action the defendant is the Respondent. The Applicant seeks damages for personal injuries as a result of the alleged negligence/breach of contract by the Respondent who was at all material times the employer of the Applicant. The injuries were caused, it is alleged, by the use of a jackhammer. In general terms, the injury was to the right wrist and the right upper arm and a general anxiety and depression consequent upon the physical injuries. -- 2 of 31 -- 3 [2] The Applicant was employed by the Respondent between December 1996 and 4 March 1998 using the said jackhammer. Having made a claim against the Workers Compensation Board, the plaintiff obtained a Conditional Damages Certificate. The first Conditional Damages Certificate was issued on 21 June 1999 indicating that the injury was a strain to the right wrist. The date of the event was given as 4 March 1998. That Certificate was issued pursuant to section 262, 265 and 270 of the 1996 Act 1 . A Writ was filed in the Supreme Court on 30 June 1999. That action seems to have no relevance on the present application nor does the Notice of assessment issued on 20 August 19992 as no argument was addressed about either. Subsequently, the Applicant’s solicitors wrote to WorkCover Queensland on 1 September 1999 3 requesting that the June Certificate be amended to cover the whole of the right upper limb. A Notice of Assessment dated 21 September 1999 4 was forwarded to the Applicant’s solicitors. An application for a damages certificate dated 6 December 1999 was lodged 5 . The particulars provided by the Applicant referred to the “right ulna nerve entrapment and carpal tunnel to the right wrist”6 . It was indicated that the “event” occurred was 9 March 1998. Question 32 asked “(If injury resulted from a non-specific event/s, please write date on which a doctor first consulted)”. In fact the plaintiff consulted a doctor on 9 March 1998 The answer to Question 34 explaining what happened stated “…. this work done over period of time December 1996 to March 1998.” The answer to Question 35 indicated that the Applicant stopped work on “4/3/98.”A subsequent Certificate was issued pursuant 1 Affidavit of Mr Duhig filed 18 June 2002, Ex. A 2 Ibid Exhibit B. 3 Ibid Ex C. A further request was sent on 2.12.99 being Ex E. 4 Ibid Ex D. This is discussed later in these reasons. 5 Ibid Ex F. 6 Answer to Ques. 37. -- 3 of 31 -- 4 to Section 184D of the Workers’ Compensation Act 1990 (the “1990 Act”) in respect of the period 1996 to January 1997. No injury was described by that Certificate issued on 9 December 1997. 7 The correspondence from the Applicant’s solicitors indicated that there was an urgent need to bring the proceedings. [3] The effect of issuing this Certificate meant that the Applicant could start proceedings at law for damages for the injury but that proceedings are stayed until the board makes the certificate unconditional (s.184D(5)). Proceedings in action D4861 of 1999 were commenced on 14 December 1999. The Respondent has no issue in relation to the Applicant’s compliance with the 1990 Act 8 . [4] The Conditional Damages Certificate dated 9 December 1999 related to the period 1996 to January, 1997. On 1 February 1997, the 1996 Act came into effect and it was necessary to issue a similar certificate pursuant to that legislation for injuries referable to the 1996 Act 9 . The relevant Certificate is dated 21 January 2000. The Applicant issued proceedings on 31 January 2000 in D281 of 2000. He was entitled to do so pursuant to Section 262(3) of the 1996 Act. The particulars of claim in each action are similar. The period of time over which the injury is alleged to have occurred is from December 1996 to March 1998. That might explain the need to issue proceedings by December 1999. The injuries in each action were described as follows 10 : “4. Particulars of the Plaintiff’s personal injuries are as follows: (a) An injury to his right arm described as follows: 7 Affidavit of Ms Delaney filed 28 June 2002, Ex. J. 8 Transcript p.7 l. 36-41. 9 Section 551(2) of the 1996 Act provided for the transitional aspects relevant to that action. Injuries after 1 February 1997 were covered by the 1996 Act 10 Para.4. Claim filed 14.12.99. -- 4 of 31 -- 5 (i) a strain to the right wrist; (ii) right ulna nerve entrapment; (iii) carpal tunnel injury to the right wrist; (iv) general anxiety and depression flowing as a result of the pain in his right arm and right wrist caused by the injuries referred to above.” The Respondent/Defendant’s submissions [5] The Respondent opposed the orders sought on the grounds that the proceedings in D281 of 2000 are incompetent for want of compliance with Chapter 5 Part 2 (ss.253 to 274) of the 1996 Act. It is argued that the provisions are mandatory in nature and that there is no entitlement to commence proceedings until the steps prescribed by the 1996 Act have been performed: Bonser v. Melnacis.10A That case refers to the relevant legislation which entitles a worker to sue an employer under the 1996 Act. Reference will be made to the relevant sections as necessary. It is not intended to once again set out the relevant legislation as discussed in Bonser’s case 11 . Section 252(2) provides that the provisions of Chapter 5 are provisions of substantive law. Such a provision did not exist under the 1990 Act. Therefore, some of the cases decided under the earlier legislation are of limited use. This will be discussed later in these reasons. [6] The primary argument of the Respondent is that the Conditional Certificate of 21 January 2000 confines the injury to 4 March 1998. It is referable to action D281 of 2000 and should have listed the period consistent with the information in the claim form 12 and the Application for Damages Certificate of 8 December 1999. 13 Given that action D4861 of 1999 covered the period to 31 January 1997, the Conditional 10A (2002) 1 Qd.R.1 11 A clear exposition of the structure of the 1996 Act was given by Shepherdson J. in Green v Suncorp Metway Ltd. & Ors, unreported judgment 8.2.00. 12 (Exhibit A to Ms. Delaney’s Affidavit filed 26 June 2002) 13 (Exhibit F to the Affidavit of Mr. Duhig op.cit.). -- 5 of 31 -- 6 Certificate should have referred to the date that the 1996 Act came into effect viz. 1 February 1997 through to the date that the Applicant was unable to continue work viz. 4 March 1998. If the Applicant is unable to continue action D281 of 2000, then a substantial part of his claim will not be able to be pursued. This error in the Conditional Certificate, the Respondent says, should have been picked up by the Applicant’s solicitors. The Respondent now relies upon the error, which it accepts its insurer WorkCover was responsible for, to avoid its liability. The Respondent now is its own insurer. A question may arise as to whether the Respondent can be held responsible or liable for the error of its previous insurer, WorkCover. City WorkCover is the administering body in relation to the Respondent as defendant 14 . Relevant Legal Principles [7] The question for determination is whether action D281 of 2000 is incompetent given that the injury in the pleading is described as having occurred over a period of time whereas in the Conditional Certificate it is limited to 4 March 1998, the day that the Applicant stopped work. The Respondent contends that the situation is analogous to Coote v. Gas Corporation of Queensland Limited 15 . In that case, WorkCover had issued a Damages Certificate under the 1990 Act in respect of an injury suffered by the plaintiff on 25 October 1996. The Certificate ought to have referred to the date of the injury as 26 August 1996. The Court stated: “…the Board has not issued the certificate it ought to have issued and has purported to issue a certificate it had no power to issue. This does not lead to the result that the certificate should be treated as if it were a certificate properly issued under the section..” 14 (Transcript p.13.30) 15 (unreported 429 of 1998, McGill S.C., D.C.J. 7 May 1998.) -- 6 of 31 -- 7 [8] His honour went on to hold that the certificate could not be relied upon to authorise the proceedings claiming damages for injuries suffered on the correct date. An analogous situation arose in Stemp v WorkCover 16. The claimant obtained a Notice of Assessment under the 1996 Act in relation to a back injury suffered on a particular day. He then lodged a Notice of Claim for Damages pursuant to s.280 of the 1996 Act in relation to both an injury sustained on a particular day and also over a period of time beforehand. The Court held that the Notice of Claim was not in compliance with the 1996 Act as it had included an injury which had not been assessed under the Act. Stemp’s case concerned an application under s.304(1)(a) of the 1996 Act seeking a declaration that a notice of claim had been properly given pursuant to s.280. That point does not arise in the present case. The present case can be distinguished as far as procedure is concerned. 17 [9] An alternative argument raised by the Respondent is that the Applicant was issued with a Notice of Assessment dated 21 September 1999. 17A This Notice predated both sets of proceedings. It referred to an injury sustained on 4 March 1998. The argument was that if it is held, contrary to the submissions of the Respondent, that the Conditional Damages Certificate dated 21 January 2000 was not defective for its failure to specify the correct date or relevantly the range of dates from February 1997 to March 1998, then the same reasoning may apply to the Notice of Assessment. In other words, the Notice of Assessment would be “valid” and the plaintiff would be categorised as a worker whose injury had been assessed within 16 (unreported 4549 of 1999, Boyce Q.C. D.C.J. 23 June 2000). This case should be looked at in light of Lau v WorkCover Queensland [2002] QCA 244 unreported 19 July 2002 17 Once a conditional certificate issues, and the action commenced, the s 280 Notice of Claim is given then a Notice of Assessment issues followed by the unconditional certificate: s.262(5). 17A Exhibit D to the affidavit of Mr Duhig filed on 14 June 2002 -- 7 of 31 -- 8 the meaning of s. 253(1)(a) of the 1996 Act. It is further submitted that s.253(1)(b) and s.262 would no longer apply to him. Section 262(3) would no longer operate to authorise proceedings based on a Conditional Certificate. The Applicant would then be authorised to seek damages under s.256 of the 1996 Act, having received a Notice of Assessment. However, he would be required to comply with s.302 before commencing proceedings. This was not done and so the proceedings would be incompetent in that event. If it is necessary to deal with this alternative argument, then the reasoning in Gray v WorkCover and Anor 18 in relation to s.24AA of the Acts Interpretation Act (Qld) 1954 becomes relevant. There is no impediment, under the 1996 Act in the appropriate case to have proceedings continue based upon a Damages Certificate and also a Notice of Assessment 19 . The usual procedure would be to have the injury assessed and obtain a notice of assessment from WorkCover: s253(1)(a). If the injury were not assessed but an application for compensation had been made then s.253(1)(b) would allow the plaintiff to commence proceedings. In the present case, conditional certificates were issued: s.262(3) and (4). If there has been no previous application for compensation with respect to the particular injury, then s.265(4) allows WorkCover to issue a conditional certificate even though there has been no assessment. This latter provision may be relevant in relation to some aspects of the present claim. In fact a damages certificate issued on 3 July 2001 in relation to the “major depressive disorder”19A . 18 (2000) QSC 418 unreported 22.11.00 Holmes J. 19 Re an application by Lankeet BC 9900947 unreported judgment of White J. 11.3.99; Gray’s case op.cit. para.23. 19A Ex. J. to the affidavit of Mr Duhig op.cit. -- 8 of 31 -- 9 Power to Amend Certificate [10] Mr. Stobie for the Respondent submits that there is no power in the Court to rectify the Conditional Certificate to normalise the proceedings. In otherwise, a mistake by the insurer’s clerk can deprive a plaintiff of his or her right to sue. That was the basis of the Respondent’s submission 20 . Of course, the certificate could be rectified before action at the instigation of either party. Section 24AA of the Acts Interpretation Act provides as follows: “If an Act authorises or requires the making of an instrument or decision- (a) the power includes power to amend or repeal the instrument or decision; and (b) the power to amend or repel the instrument or decision is exercisable in the same way, and subject to the same conditions, as the power to make the instrument or decision.” [11] It was held in Gray’s case 21 that an instrument includes “any document”22. It is my view that a Conditional Certificate is capable of amendment at least prior to the action being commenced. Once the action is commenced, different considerations apply under the 1996 Act: s 252(2). Focussing for the moment on the fact that the Applicant has a Conditional Certificate which relates to a particular date, then the cause of action commenced should relate to that Certificate. This is a different question to that dealt with in Craig v. BHP Coal Pty. Ltd23 . In that case, the Conditional Certificate did not include reference to psychiatric illness which was pleaded in the statement of claim together with a neck or spinal injury. His honour 20 (Transcript p.11.45-60) 21 (op.cit.p. 4) 22 (ss 6 and 36 of the Statutory Instruments Act 1992) 23 unreported decision of Dutney J. 19 October 2000 -- 9 of 31 -- 10 held that under s.184D(4) of the 1990 Act 24 then reference to a precise injury in the conditional certificate is not necessary. The issue of the conditional certificate is simply to permit the commencement of subsequently stayed proceedings. The Certificate need only refer to the specific event described. Accepting that decision to be correct, it does not assist the present Applicant as the dates of the specific event are not described in the Certificate. I put aside for the moment the psychiatric condition which is not referred to in either Certificate in the present case. In fact, in Craig’s case the solicitor asked for a new conditional damages certificate as the original certificate had the incorrect date of injury on it. In neither certificate in the present case does the nature of the injury appear. The decision of Stemp stated : 25 “The policy of the Act requires that each discrete “injury” which is said to have been sustained at work must be considered independently of other injuries and a Notice of Assessment in respect of injury must be obtained before damages may be claimed in respect of any such injuries: Re Robinson (OS 11614 of 1998 an unreported decision of Williams J on 29 January 1999); Re Lankeet (OA 1959/99 an unreported decision of White J 19 March 1999).” [12] Both Robinson and Lankeet support the proposition that separate Notices of Claim may be brought after the necessary precondition of assessment has occurred and, if appropriate, a damages certificate issue in respect of different injuries arising out of the same event 25A . Williams J. in Re Robinson observed that an applicant could seek damages for psychological injury if provided with a certificate under s.265 of the 1996 Act. That is, it was possible to proceed separately by way of notice of assessment and a damages certificate for distinct injuries arising out of the one incident. As pointed out earlier, although the Conditional Certificate may not refer to all the injuries at that point, such injuries must be referable to a specific event26 . 24 which is in similar terms to s.262(3) of the 1996 Act 25 op. cit. p. 7. This has to be read subject to Lau’s case op. cit. 25A (Re Lankeet p.5) 26 (Craig’s case op.cit. p.3) -- 10 of 31 -- 11 Unfortunately for the present Applicant, the specific event is limited to 4 March 1998. No application to amend the Certificate was made prior to commencing the action. The claim for a psychiatric or a psychological condition may have been the subject of a different procedure as discussed in Re Robinson if no claim had been previously made and a damages certificate did issue prior to commencing the action: s.265. A s. 280 Notice of Claim may now include injuries which have not been assessed. 26A Application of legal principle [13] Coote’s case was decided under the 1990 Act. The 1996 Act make the provisions in Chapter 5 provisions of substantive law. The reasoning of his honour Judge McGill would have even more force under the latter legislation. Counsel for the Applicant has argued that the Conditional Damages Certificate permits the proceedings to commence and that following Craig’s case the date of 4 March 1998 can be corrected in the Notice of Assessment which is required to be issued by WorkCover pursuant to s.262(4) or s.265(3) before the unconditional certificate can issue. Craig’s case has been distinguished. It is contended that the incorrect date can be rectified by a Notice of Assessment with the correct date. Such a Notice is issued after an action is commenced pursuant to a conditional certificate and before the unconditional certificate is issued. Had this matter not proceeded to the stage that it has, an amendment would have been practicable: s. 24AA Acts Interpretation Act. It was not argued that the incorrect date was a minor variation in procedure: s.252(3). This case could have been easily resolved if the words “or to correct an 26A Lau’s case op. cit. paras. 38-41 per Byrne J with whom McPherson AJ agreed. His Honour also commented upon the expense, delays and court resources involved under the present WorkCover legislation (para 46) -- 11 of 31 -- 12 administrative mistake by WorkCover” were added to s. 252(3) after the word “procedure”. Alternatively, there should be a discretionary power in the Court to allow amendments nunc pro tunc, that is, retrospectively. [14] What has occurred in the present case is that a Notice of Claim has been lodged pursuant to s.280 of the 1996 Act. This is required under s.262(4) or S.265(5). This was discussed in Green v. Suncorp Metway Ltd. and Ors.27 . Compliance with s.280 as contained in Part 5 and Part 6 (compulsory conference) is to occur after a proceeding is begun pursuant to a conditional certificate and before the proceeding advances beyond commencement 28 . The Respondent has accepted that the Applicant has complied with this section 29 . City WorkCover has responded to the Notice of Claim pursuant to s.285 of the 1996 Act. A compulsory conference was held on 10 April 2002.30 Therefore, apart from the incorrect date on the Conditional Certificate, the proper procedures have been carried out under the 1996 Act. The next step would be to serve the Respondent with the Claims in both actions within the period as extended on this hearing (s.306(3)) and for City WorkCover to issue an unconditional certificate. The Applicant has been assessed and a Notice of Assessment has issued: s.262(5) and s.265(5). Even if the Notice of Assessment were presently inaccurate31 , there is an argument that such Notice could be amended at this stage pursuant to s.24AA of the Acts Interpretation Act. In fact, the incorrect date of 9 March 1998 appears. 27(673 of 2000 an unreported decision of Shepherdson J. 8 February 2000) 28 (ibid.11) 29 (para. 23 of affidavit of Ms. Delaney filed 26 June 2002) 30 (para. 24 ibid). 31 (Exhibit M to the affidavit of Ms. Delaney op.cit.) -- 12 of 31 -- 13 [15] If the Notice of Assessment were amended or another one issued under s.262 or s.265, then it is suggested by the Applicant’s counsel that another Notice of Claim would be lodged and another compulsory conference would be necessary. Even so, it would be fanciful to think that these problems do not occur from day to day in the administration of the 1996 Act. In the present case, the problem is further compounded by the change in legislation between the 1990 Act and the 1996 Act. On top of that, the present case presents another feature which relates to occupational overuse of the right upper limb over a period of time, not on a particular date. Further, there are the injuries including psychological injury which were not the subject of a claim and in respect of which s.265 applies and not s.262. Different Notices of Assessments/Damages Certificates would be required. One can envisage that the problems in the present case could be more readily overcome if WorkCover had inserted the correct period in the Conditional Damages Certificate issued on 21 January 2000 rather than the date that the Applicant finished work. [16] One must apply the reasoning in Bonser v. Melnacis 32 . The Court of Appeal held “that the combined effect of the scheme introduced by the WorkCover Act (with particular reference to s.253, s.262 and s.302) effectively abolishes any entitlement on the part of an injured worker to commence proceedings against the employer and that such a right comes into existence only upon compliance with the prescribed steps.” Relevantly, one could add s.265 to that list of sections. In fact the present Applicant has complied with the prescribed steps. It is the administrative error on the part of WorkCover which has embarrassed the Applicant. The Respondent and moreover CityCover now wish to take advantage of that error to deprive the 32 op.cit. -- 13 of 31 -- 14 Applicant of a substantial part of his claim. Mr. Stobie for the Respondent submits that the onus is upon the Applicant to obtain the correct certificate. He further submits that if the Applicant has asked for another corrected Certificate, then the action could have commenced based on that Certificate. If that had been done by say February 2000, it would have been substantially within the limitation period. Matters were allowed to run on by both sides. I generally accept the general thrust of those submissions. It certainly places a heavy onus on the solicitors for any applicant/plaintiff under the 1996 Act. No argument was addressed to me concerning the use of s.24AA of the Acts Interpretation Act to amend the Conditional Certificate which is relied upon for action D281 of 2000 or the subsequent Notice of Assessment issued on 14 March 2001. The present Applicant had acted upon the said certificate, albeit erroneously, in commencing his action. In Gray v. WorkCover Queensland33 . Holmes J. expressed a negative view in such circumstances in relation to the remedy of rescission pursuant to s.24AA. In the present instance an amendment to the Notice of Assessment would not be subject to the considerations in that case. The present proceedings were not based on the Notice of Assessment but on the Conditional Certificate. Alternative Argument [17] An outline of the alternative argument is referred to in paragraph 8 above. The Notice of Assessment 34 , was issued by WorkCover after the Conditional Certificate was issued but before proceedings were commenced in action D4861 of 1999. Usually proceedings would then issue because the Conditional Certificate is issued to allow a plaintiff to commence proceedings in order to avoid any limitation of 33 (op.cit. para 16) 34 (op.cit. Exhibit D) -- 14 of 31 -- 15 action problem. It was issued in June 1999 but the proceedings did not issue until 14 December 1999. In other words, WorkCover took the initiative, contrary to the procedure provided for in ss.262(3) and (4) and 265(4) and (5). The Applicant pleaded his case relying on the Conditional Certificate in each instance. As discussed, the second action, necessitated by the change in legislation, relied on the Conditional Certificate issued on 21 January 2000. The Applicant is required in the ordinary course of things to issue proceedings after the conditional certificate is issued and before the limitation of actions provisions apply. He did so in both instances. In effect the unilateral act of WorkCover has caused another problem for the Applicant in the present case. [18] It is submitted by Mr. Stobie for the Respondent that once the Notice of Assessment was issued the Applicant fell within s.253(1)(a) and that s.262 no longer had any application. The issuing of the Notice of Assessment usually takes place after the action, which relies upon a condition certificate, is commenced. WorkCover pre- empted the usual procedure. If strict compliance of the legislation is to be adhered to then it should operate for both sides. The pre-court procedures are strictly applied against a plaintiff: Bonser v. Melnacis; Stemp v. WorkCover Queensland35 . Usually, after the action is commenced and a Notice of Assessment is provided, then an unconditional certificate must issue: s.262(5) and 265(6). There is nothing in the Act which authorises WorkCover to change the regime. The issue of the Notice of Assessment after the Conditional Certificate and prior to the commencement of the action is of no effect in so far as it purports to alter the processes put in place by the issue of the Conditional Certificate. The alternative 35 op.cit -- 15 of 31 -- 16 argument of the Respondent is rejected. The Applicant is entitled to assume that WorkCover complies with the Act. 36 [19] The Respondent, through its self insurer, CityCover, is attempting to rely upon non- compliance with the Act by its previous insurer to shut out the Applicant from his claim. It is open to the insurer to refuse to make a damages certificate unconditional. In that event the Applicant would be forced to discontinue the proceedings: s.267(1) and (2). WorkCover could have done so which would have allowed the Applicant to follow a different procedure: Gray v. WorkCover Queensland37 Also, s.24AA of the Acts Interpretation Act would have allowed a basis for WorkCover to rescind the Notice of Assessment if it had been issued by mistake. No concluded view is taken in relation to what might have occurred: Gray v. WorkCover Queensland.37A A similar approach could be adopted with the Notice of Assessment dated 14 March 200138 . The primary question, therefore, is whether there is any other basis for the Conditional Certificate of 21 January 2000 with the incorrect date to be relied upon to legitimize action D281 of 2000. It has not been argued that the “injury” since February, 1997, was an aggravation of an injury under the 1990 Act. It was not necessary to deal with that proposition as discussed in Coletti v. Steggles Ltd 39. Estoppel [20] The elements of estoppel by conduct were conveniently summarised by Brennan J. in Walton Stores (Interstate) Ltd. v. Maher 40 36 s. 342(1) and (3) 37 op.cit.para.22. 37A op cit para. 16 38 Exhibit M to the affidavit of Ms Delaney 39 BC 200108112 an unreported judgment of Jones J. 17 July 2001 40 (1998) 164 CLR 387 at 413 -- 16 of 31 -- 17 “The nature of an estoppel in pais is well established in this country. A party who induces another to make an assumption that a state of affairs exists, knowing or intending the other to act on that assumption, is estopped from asserting the existence of a different state of affairs as the foundation of their respective rights and liabilities if the other has acted in reliance on the assumption and would suffer detriment if the assumption were not adhered to.” In some ways, this reflects the provisions of s. 342, at least in respect of compliance with the 1996 Act. [21] In Day Ford Pty. Ltd. v Sciacca41 the Court of Appeal (Macrossan C.J. with whom Kelly SPJ and Ambrose J. agreed) stated: “A number of cases consider the place of estoppel in supporting the enforcement of a contract which would otherwise be void for illegality. In Kok Hoong v. Leong Cheong Kweng Mines Ltd [1964] AC 993, reference is made to the familiar rule which, in its ordinary form, is stated in this fashion: A party cannot set up an estoppel in the face of a statute. At 1016 the Privy Council suggested that a test to apply in the type of case before it, namely one involving the laws of money lending was to ask ‘whether the law that confronts the estoppel can be seen to represent a social policy to which the court must give effect in the interests of the public generally or some section of the public’. A similar approach had been adopted in Maritime Electric Co v. General Dairies Ltd [1937] AC 610, especially at 620 where it was said that in deciding whether an estoppel might be set up against the operation of a statute ‘the court should (1) first of all determine the nature of the obligation imposed by the statute, and (2) then consider whether the admission of an estoppel would nullify the statutory provision’. At 621, the court declared that it was ‘unable to see how the court can admit an estoppel which would have the effect pro tanto and in the particular case of repealing the statute’. There is no need to multiply examples by the citation of authorities since the appropriateness of this approach based on consideration of social and statutory policy is so amply supported. In the present case we see that the statute by s.8 imposed an unconditional prohibition upon the very type of sale which the written contract of May 1988 provided for. The plaintiff’s claim so far as they rely upon estoppel should be rejected”. [22] Also in the Commonwealth v Verwayen42: 41 (1990) 2 Qd. R. 208 at 216 42 (1990) 170 CLR 394 per Deane J at 444-446 -- 17 of 31 -- 18 “1. While the ordinary operation of estoppel by conduct is between parties to litigation, it is a doctrine of substantive law the factual ingredients of which fall to be pleaded and resolved like other factual issues in a case. The persons who may be bound by or who may take the benefit of such an estoppel extend beyond the immediate parties to it, to their privies, whether by blood, by estate or by contract. That being so, an estoppel by conduct can be the origin of primary rights of property and of contract. 2. The central principle of the doctrine is that the law will not permit an unconscionable – or, more accurately, unconscientious - departure by one party from the subject matter of an assumption which has been adopted by the other party as the basis of some relationship, course of conduct, act or omission which would operate to that other party’s detriment if the assumption be not adhered to for the purposes of the litigation. 3. Since an estoppel will not arise unless the party claiming the benefit of it has adopted the assumption as the basis of action or inaction and thereby placed himself in a position of significant disadvantage if departure from the assumption be permitted, the resolution of an issue of estoppel by conduct will involve an examination of the relevant belief, actions and position of that party. 4. The question whether such a departure would be unconscionable relates to the conduct of the allegedly estopped party in all the circumstances. That party must have played such a part in the adoption of, or persistence in, the assumption that he would be guilty of unjust and oppressive conduct if he were now to depart from it. The cases indicate four main, but not exhaustive, categories in which an affirmative answer to that question may be justified, namely, where that party: (a) has induced the assumption by express or implied representation; (b) has entered into contractual or other material relations with the other party on the convention basis of the assumption; (c) has exercised against the other party rights which would exist only if the assumption were correct; (d) knew that the other party laboured under the assumption and refrained from correcting him when it was his duty in conscience to do so. Ultimately, however , the question whether departure from the assumption would be unconscionable must be resolved not by reference to some preconceived formula framed to serve as a universal yardstick but by reference to all the circumstances of the case, including the reasonableness of the conduct of the other party in acting upon the assumption and the nature and extent of the detriment which he would sustain by acting upon the assumption if departure from the assumed state of affairs were permitted. In cases falling within category (a), a critical consideration will commonly be that the allegedly estopped party knew or intended or clearly ought to have known that the other party would be induced by his conduct to adopt, and act on the basis of, the assumption. Particularly in cases falling within category (b), actual belief in the correctness of the fact or state of affairs assumed may not be necessary. Obviously, the -- 18 of 31 -- 19 facts of a particular case may be such that it falls within more than one of the above categories. 5. The assumption may be of fact or law, present or future. That is to say it may be about the present or future existence of a fact or state of affairs (including the state of the law or the existence of a legal right, interest or relationship or the content of future conduct). 6. The doctrine should be seen as a unified one which operates consistently in both law and equity. In that regard, “equitable estoppel” should not be seen as a separate or distinct doctrine which operates only in equity or as restricted to certain defined categories (e.g. acquiescence, encouragement, promissory estoppel or proprietary estoppel). 7. Estoppel by conduct does not of itself constitute an independent cause of action. The assumed fact or state of affairs (which one party is estopped from denying) may be relied upon defensively or it may be used aggressively as the factual foundation of an action arising under ordinary principles with the entitlement to ultimate relief being determined on the basis of the existence of that fact or state of affairs. In some cases, the estoppel may operate to fashion an assumed state of affairs which will found relief (under ordinary principles) which gives effect to the assumption itself (e.g. where the defendant in an action for a declaration of trust is estopped from denying the existence of the trust). 8.The recognition of estoppel by conduct as a doctrine operating consistently in law and equity and the prevalence of equity in a Judicature Act system combine to give the whole doctrine a degree of flexibility which it might lack if it were an exclusively common law doctrine. In particular, the prima facie entitlement to relief based upon the assumed state of affairs will be qualified in a case where such relief would exceed what could be justified by the requirements of good conscience and would be unjust to the estopped party. In such a case, relief framed on the basis of the assumed state of affairs represents the outer limits within which the relief appropriate to do justice between the parties should be framed.” [23] One should not assume for the purposes of this argument that the Respondent is bound by any conduct of the action by WorkCover which previously administered its common law insurance scheme. This point was not fully argued initially and further written submissions were called for. Further Arguments on Estoppel -- 19 of 31 -- 20 [24] One argument which was not addressed this hearing was s 342 of the 1996 Act. It raises the right of a party to rely on WorkCover performing its duties in accordance with the Act. Section 342(1) provides that: “If a person has dealings with WorkCover – (a) the person is entitled to make the assumption mentioned in subsection (3). Section 342(3) provides: (a) that at all relevant times, this Act has been complied with.” [25] In fact WorkCover in attempting to comply with its duties under the Act issued a Conditional Certificate with an incorrect date. It exercised its powers erroneously. Section342(4) states: “However a person is not entitled to assume a matter mentioned in subsection (3) if – (a) the person has actual knowledge that the assumption would be incorrect.” [26] I find that the Applicant’s solicitors given the information they provided to WorkCover about the period over which the injury occurred were entitled to assume that the Certificate allowed them to commence an action based upon those dates. It has not been shown that they acted unreasonably in so assuming. The section seems to raise the type of assumption which is part of the law of estoppel. The means of knowing the truth is to be distinguished from actual knowledge. PRIVITY [27] The following submissions were made on behalf of the applicant: -- 20 of 31 -- 21 (a) Once an insured has indemnified the insured, the insurer is entitled to control the litigation on behalf of the insured. 43 (b) The interests of the insurer may be identified with those of the insured and thus in parity with each other. 44 In that case the insurer was bound by an earlier finding in proceedings against the insured. This case dealt with estoppel in proceedings. (c) It was submitted that WorkCover being an insurer was required under statute to perform its obligations. That is, the exercise of WorkCover’s statutory rights must be on behalf of an insured. In this case that is the Respondent. Under s 490, an employer may apply to review a decision of WorkCover. This provision relates principally to premiums 45 not other administrative actions. [28] The Applicant’s counsel submits that WorkCover controlled the process without reference or interference from the Respondent that as part of that process WorkCover made representations to the Applicant’s solicitors. It was submitted that the Respondent is bound by those representations for the following reasons: “(i) By reason of the policy of insurance the BCC was bound to accept WorkCover’s conduct of the proceeding. In this sense it may be said that that WorkCover had the BCC’s express authority to act on its behalf. (ii) WorkCover was bound to act on behalf of the employer pursuant to the Act and, as the BCC did not review WorkCover’s decision, that conduct must be binding upon the BCC.” (iii) Even if the BCC is truly a third party to the representation, it is submitted that there is privity between the BCC and WorkCover and the BCC. 46 43 Santos Ltd v American Home Assurance Act (1987) 4 ANZ Insurance Company 60-795 at 74, 873-74 44 Webb v Davey v Fire & All Risks Insurance Co Ltd [1982] Qd R 356 45 s 487 1996 Act 46 Supplementary Submissions p. 5 -- 21 of 31 -- 22 [29] The Respondent submits that any estoppel can only operate against the Defendant if WorkCover Queensland was acting as agent of the Respondent at the time that the representation was made. It was further submitted that such agency must arise expressly or by necessary implementation given the terms of the 1996 Act. The 1996 Act does not expressly so provide but it is submitted that “its role as insurer requires it however to act as the agent of the employer in certain circumstances”47 . No authority was quoted. [30] It is submitted that the Respondent could not issue a Conditional Damages Certificate. Therefore, there is no agency as an agent cannot do something on behalf of the principal which is not within the principal’s capacity. [31] The Respondent relied upon the case of Pastras v The Commonwealth.48 That case did refer to the difference between estoppel by conduct which is relevant to the present case and res judicata estoppel or issue estoppel, the latter being discussed in Webb’s case.49 [32] As in Pastras’s case, the Respondent can appeal some of the decisions of WorkCover under the 1996 Act. This seems to be limited to the premiums imposed by WorkCover. The question in Pastras’ case was whether the determination by the Commissioner under the Commonwealth Employees’ Compensation Act 1930-1964 created an estoppel either as res judicata or by way of issue estoppel. The Respondent relies on the obiter remarks. 50 47 p 7 Supplementary Submissions of Applicant 48 (1996) 9 FLR 152 49 op cit 50 p. 513 -- 22 of 31 -- 23 [33] That passage related to admissions by the Commissioner. The Court was not concerned with estoppel by conduct and so the decision can be distinguished. Also, it dealt with different legislation. [34] It is submitted that WorkCover is engaged in administrative or regulatory functions. I find that if there is conduct by WorkCover which would otherwise give rise to an estoppel, absent such conduct nullifying any statutory provision under the 1996 Act, WorkCover is bound by such an estoppel: Day Ford Pty Ltd v Sciacca51 Wilson v Austral Motors Queensland) Pty Ltd;. 52 Hewson v Burke. 53 WorkCover “played such a part in the adoption of and persistence in the assumption that it would be unjust and oppressive if the respondents were to depart from it”.54 I apply those remarks to the present case. [35] By its contract of insurance, WorkCover carries out ‘the administrative tasks on behalf of the Respondent. In effect, WorkCover is the common law insurer of the Respondent. [36] Section 306(5) of the 1996 Act provides: “WorkCover is entitled to conduct for an employer, other than an employer who is a self insurer, all proceedings taken to enforce the claim or to settle any matter about the claim.” This has similar consequences for an insured where an insurer filed a notice of intention to be joined as a defendant in an action under the motor vehicles 51 op cit 216 52 (1983) 2 Qd R 774 at 787 53 [2000] QCA 434 Court of Appeal 11429/99 unreported 27 October 2000 54 ibid para 15 -- 23 of 31 -- 24 legislation: Webb’s case. 55 That case was concerned with issue estoppel but the privity of the parties seems similar.55A [37] In fact, it is only after the compulsory conference that the employer is served with proceedings: s 306(3) and formally is aware of same. Of course, it is a party to the proceedings once the plaintiff has the conditional certificate and commences proceedings. WorkCover has control of the proceedings and its conduct binds the employer in the action on matters such as costs: s 322. If WorkCover denies liability after receiving a Notice of Claim, then costs on a solicitor-client basis must be awarded if “WorkCover’s liability is established in a proceedings before a court to the extent of at least 75%”. The appropriate order would be made against the defendant employer. [38] The nature of the order for costs against an employer in the action may be determined by WorkCover’s attitude on liability. The parties have, I find, identical interests, and “the two can be properly described as being in privity one with another”. Webb’s case;56 Commonwealth v Verwayen;57 Hewson v Burke & Anor.58 [39] The fact that City Cover is now the insurer does not, in my view, alter the principle that the Respondent is bound by the conduct of its insurer related to the same proceedings. The Conditional Certificate issued prior to D281 of 2000 commencing. However, the issue of the said certificate was a pre-condition to the 55 op cit 55A See also Verwayen op. cit. para. 1 p. 444 56 op cit p 358 57 op cit p 444 58 [2000] QCA 134; unreported judgment Court of Appeal 11429/99 at p. 5 para. 15 -- 24 of 31 -- 25 action commencing. The conduct of WorkCover acting on behalf of the Respondent was “part of the proceedings to enforce the claim by the Applicant”. In this case, proceedings 4861 of 1999 had issued on 14 December 1999 and D281 of 2000 was necessary because of the change in legislation in February 1997. The Respondent, I find, is bound by WorkCover’s conduct in those circumstances. In the event that estoppel is established, relating to the incorrect date on the Conditional Certificate issued on 21 January 2000, the Respondent is bound by same. Facts Relevant to Estoppel [40] The Conditional Certificate issued on 21 January 2000 contained an incorrect date. The date nominated is the day that the Applicant finished work. He could no longer work but strictly speaking some damage may have occurred on that day. In other words, proceedings were issued and based upon a certificate which established a cause of action. The Conditional Certificate lacks the necessary efficacy in order to justify the broader dates in the pleading. Is the error by WorkCover something upon which it could be said that a factual basis has been laid for a plea of estoppel? The Respondent by its agent WorkCover issued the Conditional Certificate pursuant to the 1996 Act and so complied with its statutory obligation. In effect it made an error of fact in performing its statutory obligation. His honour Judge McGill stated in Jackel (op. cit. p.9): “But in the present case, admitting the estoppel would not frustrate the protective element of the statute; it would assist the position of the injured worker. It is well established that a construction of such legislation which is favourable to such a worker should be preferred: Wilson v Wilson’s Tile Works Pty. Ltd. (1960) 104 CLR 328 at 335 per Fullagar J. It may be that the motive for the amendments in -- 25 of 31 -- 26 1996, which introduced provisions such as s.182D, was probably less of a reflection of the policy justifying that approach to construction than is usual with such legislation, and one may perhaps be forgiven for suspecting that the motivation was rather directed towards protecting the workers’ compensation fund, and indirectly those responsible for contributing to it, by multiplying obstacles to the successful recover of damages from it. I am not at all sure that it is correct to say that there cannot be an estoppel against WorkCover in relation to these provisions, but the difficulty I think lies in identifying a particular representation alleged to arise from the letter of 28 April 1999, or any reliance on that by the plaintiff to his detriment”. The objects of the 1996 Act provide: “4. It is intended that the scheme should – (a) maintain a balance between – (i) providing fair and appropriate benefits for injured workers or dependants and persons other than workers; and (ii) ensuring reasonable premium levels for employers.” The application of the 1996 Act and the question of estoppel must be considered in light of the objects of the 1996 Act. [41] Reservations have been expressed elsewhere about the 1996 Act being “destructive of workers’ remedies”: Bonser v. Melnacis59 [42] The question for determination here, is whether the Respondent, now self insured, can avoid its obligations to the Applicant by relying upon an incorrect date in a Conditional Certificate issued by its former insurer, WorkCover. [43] It remains to be established whether there was such a representation and whether the Applicant suffered any detriment or moreover whether there are reasons for finding that it would be unconscionable for the Respondent to now rely on the error of 59 op. cit. 15 -- 26 of 31 -- 27 WorkCover60 In an affidavit of Ms. Delaney61 , she refers to the letters which accompanied both Conditional Certificates. Each purported to “allow you to commence proceedings at law for damages”. Ms. Delaney deposes that: “4. It was in reliance upon my discussions with the damages claims offers at WorkCover, the letters from WorkCover and the enclosed certificates, that I filed the proceedings in December 1999 and January 2000 on behalf of my client. I believed, in accordance with the covering letters that the conditional damages certificates permitted me to commence proceedings on behalf of my client for injuries sustained by him, whether over a period of time or otherwise. At no time did WorkCover advise me that the certificate dated 21 January 2000 did not permit me to commence proceedings relating to my client’s claim for injury over a period of time and that it would be limited to the date referred to on the certificate, namely 4 March 1998. 5. Had I not received the certificates, or had I been advised that the certificate dated 21 January 2000 did not permit me to commence proceedings in relation to injuries sustained by him over a period of time, I would have: (a) Advised my client of the problem and sought his instructions to make an application to protect his position; and (b) In accordance with those instructions, made an application: i) For a declaration that my client was entitled to receive a conditional damages certificate from WorkCover; and/or ii) For a declaration that my client was entitled to receive a conditional damages certificate that permitted him to commence proceedings for injuries sustained by him between February 1997 and March 1998; and/or iii) For leave to issue the proceeding notwithstanding non-compliance with the WorkCover Queensland Act 1996 pursuant to section 305 of that Act. 6. As a result of receiving the damages certificate dated 21 January 2000, I advised my client that he was entitled to commence proceedings at that time and sought his instructions to commence those proceedings. Having obtained instructions, I duly commenced the proceedings. 60 Till v The Nominal Defendant Court of Appeal No. 2676 of 1999 judgment delivered 26 November 1999 61 filed on 28 June 2002 -- 27 of 31 -- 28 7. I am informed by my client, Brendon John Daley and believe that: (a) He relied upon my advice to him that he was entitled to commence proceedings in relation to his injuries pursuant to the certificate dated 21 January 2000; and (b) Had I advised him that the certificate dated 21 January 2000 was inadequate (in any respect) or that he would not be able to file proceedings in relation to injuries sustained by him over a period of time, he would have given me instructions to immediately take any steps necessary to protect his position and in particular, he would have instructed me to make the application referred to in paragraph 4. 8. If my client cannot rely upon the certificate dated 21 January 2000 he will be prejudiced in that he will be deprived of his cause of action for injuries occasioned between 1 February 1997 and March 1998 because: (a) It is not possible for him to satisfy the requirements of the WorkCover Queensland Act 1996. In particular, he cannot give a second notice of claim because the limitation period has expired. Pursuant to section 280 of the WorkCover Queensland Act 1996, the notice of claim has to be given within the limitation period.” [44] I am satisfied that Ms. Delaney relied upon those letters and her previous discussions with WorkCover as detailed in her other affidavit. Since issuing proceedings the parties have proceeded up to the compulsory conference before this point was taken about the incorrect date. It is clear that the Respondent has exercised against the Applicant its rights under the 1996 Act which would exist only if the assumption were correct viz. that the Applicant was entitled to commence proceedings and rely on the broader period. There is no doubt, and I so find, that the Applicant would suffer detriment if the Respondent were allowed to avoid responsibility for the error. The limitation period has expired. He would not be -- 28 of 31 -- 29 able to claim a substantial part of his damages for the relevant period. He lost the opportunity to rectify the problem.61A [45] There is no suggestion that in those discussions WorkCover indicated that the broader period from February 1997 to March 1998 was covered by such a certificate. The Conditional Certificate of 9 December 1999 referred to the period from 1996 to January 1997. The later Conditional Certificate of 21 January 2000 defined the last day on which the Applicant worked although as discussed the material provided to WorkCover did not limit the injury to that day, quite the opposite.62 It would have been, I find, reasonable for the Applicant or his legal advisors to rely on that Certificate with that final date and to assume that the broader period could be pleaded in its action.63 [46] In fact in a letter faxed on 2 December 1999, from Ms. Delaney to WorkCover there was a request to correct the Permanent Impairment Notice issued on 21 November 1999 to reflect the “date of the injury should be stated as occurring over a period of time between 1 February 1997 and March 1998”. The Conditional Certificate issued after this request. The applicant’s legal advisors relied on the Conditional Certificate having made WorkCover aware of the relevant period prior to the issue of the said Certificate. Just as the insurer in Nigel Watts Fashion Agencies Pty td v GIO General Ltd64 exercised his right to settle the claim, the insurer in the present instance approved the efficacy of the s.280 notice and attended the compulsory 61A Nigel Watts Fashion Agency Pty Ltd v GIO General Ltd BC 9403457 NSW Court of Appeal 22 December 1994 62 Exhibit F to the Affidavit of Mr Duhig filed 14 June 2002 being the Application for a Damages Certificate dated 6 December 1999; Exhibit G to the same affidavit referred in the answer to Q32 to a non- specific event 63 (The Commonwealth v. Verwayen (1990) 170 CLR 394 at 444-446 per Deane J; Salisbury op. cit. pp.21- 22). 64 op. cit -- 29 of 31 -- 30 conference. It matters not that the solicitors had the means of knowing that the certificate was incorrect “ … because estoppels are not defeated because the party acting to his detriment had, the means of knowing the truth.”65 FINDINGS [47] The Unconditional Certificate of 9 December 1999 and 21 January 2000 are not affected by the Notice of Assessment issued 21 September 1999 as discussed. The Applicant should not be shut out from having access to the courts due to errors on the part of WorkCover in administering the Act: Neuss v. Roche Bros. Pty. Ltd. 66 Actions D 4861 of 1999 and D 281 of 2000 were properly commenced and the Applicant is entitled to unconditional certificates pursuant to s. 262(5) and s. 265(6). [48] The Respondent, by its Counsel has conceded that apart from the non-compliance with Chapter 5, Part 2 argument, the Respondent does not oppose an extension of time under s. 306(3)(b) of the 1999 Act. Orders 1. That the time for service of the proceeding on the Respondent in D4861 of 1999 and D281 of 2000 be extended for seven (7) days from the date of this judgment pursuant to s. 306(3)(b) of the 1996 Act. 2. It is further ordered that actions D 4861 of 1999 and D281 of 2000 be consolidated. 3. Costs of the Application are costs in the cause. 4. Liberty to Apply. 65 op. cit. per Handley J.A. p. 17 66 Court of Appeal 9447/99 unreported judgment 13.6.00 per Pincus A.J. p.3. -- 30 of 31 -- 31 -- 31 of 31 --