Daniel v Competitive Foods Pty Ltd [2001] QSC 208

State 4-LOOO Reporting OI ,20~ Bureau 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- JONES J Applicant No 116 of 2000 STEVEN JOHN DANIEL and COMPETITIVE FOODS PTY LTD CAIRNS .. DATE 22/05/2001 JUDGMENT 4Th Floor T r-:;. ,.. I: Uc\i(, .)h. 1 s . ~~<::> \ l •·········--· -·----·~·-·---·--···----··- Respondent(Plaintiff) Applicant(Defendant) 1 4000 ele ho e· 07 3247 4360. Facsimile: 7 -- 1 of 5 -- 22052001 T4/AW M/T CNSl/2001 (Jones J) HIS HONOUR: This is an application by the defendant employer (who is effectively insured by, and here represented by, WorkCover Queensland) for the setting aside of a default judgment entered on 21 March 2001. The applicant contends that the default judgment was irregularly entered because the plaintiff had not complied with the provisions of section 306 of the WorkCover Queensland Act 1996 (the Act). That section requires that the employer be served within 60 days of the holding of a conference, and that WorkCover be served within 30 days after the employer has been served. That service regime is especially provided for in the Act and it overrules any Court rules to the contrary. The service on the employer was not effected until 15 February 2001 which was some eight days outside the 60 day period. So immediately it is noted that there has not been compliance with section 306(3) of the Act. The respondent plaintiff has sought, in the context of this hearing, an extension of the time within which to make the service, and that application for extension has to be considered, but it of course does not save the allegation that the judgment by default was irregularly entered on the date on which that occurred. The second basis for the application for setting aside judgment is that the purported service on WorkCover was alleged to have occurred on 22 December 2000 when the 2 JUDGMENT 20 30 -- 2 of 5 -- 22052001 T4/AW M/T CNSl/2001 (Jones J) solicitors for the plaintiff sent a copy of the claim and statement of claim by post to the solicitors for WorkCover. The letter reads simply - "We enclose claim and statement of claim in relation to the above matter for your reference." There is nothing in those terms to indicate that this was intended service of the statement of claim on WorkCover. The response of the solicitors for WorkCover to that letter included the following terms - "Would you please advise the 10 date of service of the claim and statement of claim on both the employer and WorkCover. 11 That response is dated 6 February 2001, some six weeks prior to the default judgment being entered. It is clear from that exchange that the solicitors for WorkCover did not regard the delivery to them of the claim and statement of claim as amounting to service on WorkCover. The respondent plaintiff here relies upon the assumptions which a person is entitled to make pursuant to section 342 of the Act. 20 The argument proceeds that there is clear evidence that there has been dealings between the plaintiff and WorkCover within the meaning of section 342(1). Those dealings having taken the form of negotiations, compulsory conferences, and discussions with a view to settlement. That, the plaintiff argues, entitles it to make the assumptions set out in subsection 3 which are to the effect that the agents of WorkCover who are involved in those dealings can exercise certain powers. That may or may not include the power to receive service of proceedings. It would certainly include 30 3 JUDGMENT -- 3 of 5 -- 22052001 T4/AW M/T CNSl/2001 (Jones J) authority to exercise powers and to perform functions customarily exercised by WorkCover in respect of the dealings which had been undertaken and which gave rise to those assumptions being made. There is some question in my mind whether it would include authorities and power relating to the next type of dealing, namely the commencement of Court proceedings. It is unnecessary for me to decide that point since I have taken the view that there has not been service within the terms of the section on the employer in any event. I would not accept that having regard to the terms of the correspondence passing between the solicitors that there has yet been service on WorkCover in compliance with section 306 (4) . It is my finding that service on the employer was not effected within 60 days as required by section 306 subsection 3. Nor 20 has there been any service on WorkCover as required by section 306(4). It follows from that that the judgment is irregularly entered and must therefore be set aside. Mr Philp, of counsel on behalf of WorkCover, not having raised any objection, I will deal with the plaintiff's application to extend the time for service on the employer. I will therefore order that the time for service on the employer be extended to 15 February 2001. 4 JUDGMENT 30 -- 4 of 5 -- 22052001 T4/AW M/T CNSl/2001 (Jones J) With respect of costs, the judgment having been set aside because it is irregularly entered, it follows automatically that the respondent plaintiff must pay the applicant's costs of and incident to the application. Mr McCreanor has also asked that I make some directions limiting the time within which pleadings by the defendant should be delivered. I do not propose to do that. It seems to me that the plaintiff must now serve WorkCover in the appropriate way to comply with section 306 subsection 4 and that thereafter WorkCover should have the usual time within which to file and serve its defence. HIS HONOUR: I will just add a rider that WorkCover be now served in compliance with section 306(4). That service within 30 days from today's date will be deemed compliance with that subsection. 5 JUDGMENT 10 20 -- 5 of 5 --