WCRA: urgent proceedings conditional on limitation application before CC

Kovacic v Local Government WorkCare [2013] QSC 256

WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – PRE-LIMINARY REQUIREMENTS – where the applicant seeks leave pursuant to s 305 of the WorkCover Queensland Act 1996 (Qld) to commence a proceeding for injuries sustained despite non-compliance with s 280 and the pre-court procedures contained in Chapter 5 – whether leave should be granted

LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS – GENERALLY – where the respondent contends the giving of leave should be conditioned on a preliminary determination of whether the limitation period for the action should be extended pursuant to s 31 of the Limitation of Actions Act 1974 (Qld) – whether a preliminary determination is required

Henry J

The applicant seeks leave pursuant to s 305 of the WorkCover Queensland Act 1996 (Qld) (repealed) (“the Act”) to start a proceeding for injuries sustained by the applicant on 14 March 2003 despite non-compliance with s 280 and Chapter 5 of the Act. The applicant also seeks to substitute the name of the respondent to Local Government WorkCare in accordance with Uniform Civil Procedure Rule 69.

The respondent does not oppose the latter course, nor does the respondent oppose the giving of leave pursuant to s 305. Rather, it contends the giving of leave should be conditioned on there being a preliminary determination of whether the period of limitation for the action should be extended pursuant to s 31 of the Limitation of Actions Act 1974 (Qld).

The applicant relies upon the observations of White J in Brook v Boonah Shire Council [2007] QSC 44. There it had been submitted a s 31 application to extend must be brought within the potentially extended period and that such an application ought precede a s 305 application. Her Honour rejected that argument observing:

“The decision of the High Court in Davison v State of Queensland [2006] HCA 21 referred to in Charlton makes plain that not only is the reference in the legislation to the limitation period and to any extended period, whether the order and, I would suggest, any application to extend is made before or after the application under s 305, or similar, is immaterial. That is, I think, clear from statements at paragraphs 17 and 19 in the principal majority judgment that the Court should not attempt to “second-guess” the prospects of the application to extend. Further, the respondent to a s 305 application will be WorkCover or its equivalent, while a defendant to proceedings to extend time will be, in most cases, the employer.

A matter which is well recognised would enliven the Court’s discretion under s 305 is the imminent expiration of a limitation period. That is, of whichever variety: the normal limitation period or extended limitation period. It is not until the matter is in the Court as a proceeding that whether there is a limitation defence will need to be established finally. Accordingly, the applicant should be given leave to commence proceedings pursuant to s 305, subject to compliance with the requirements of part 5 of the WorkCover Act. I would not impose a condition that an application be brought pursuant to the Limitation of Actions Act”.

Her Honour’s observations are generally apt to the present matter. Notably she declined to impose as a condition of giving leave that a s 31 application be brought, although that aspect of her ruling did not involve particular elaboration. On the other hand, the imposition of conditions in giving leave is precisely what the primary judge, Holmes J, had done in Davison v Queensland [2006] HCA 21; [2006] 226 CLR 234. The analysis of Kirby J in that matter touched helpfully upon the appropriateness of imposing such conditions as safeguards against an abuse of s 43(1) of the Personal Injuries Proceedings Act 2002 (Qld), a leave provision similar to, but by no means identical to, s 305. Like s 305(2), s 43(2) allows the imposition of conditions. His Honour relevantly observed:

“The imposition of procedural safeguards, as contemplated by s 43(2) of the Personal Injuries Act, and compliance otherwise with the provisions of the Act as contemplated by s 43(3) (with the prospect of revocation of leave if such conditions and compliance are not forthcoming), mean that abuse of the leave for which s 43(1) provides can be quickly, and effectively, dealt with.

This fact was acknowledged by Holmes J when her Honour made it clear that the leave provided was conditional on the appellants’ seeking orders for an extension of the limitation period in applications filed and served within an indicated period after the date of her Honour’s orders. The orders subsequently made by Holmes J established a clear timetable for the filing and serving of the appellants’ applications; for the return of such applications before the Court; and for the personal swearing by each of the appellants “to the issue of when… and the circumstances under which, a material fact or facts of a decisive character relating to [the] cause of action against the respondent was first within [his or her] means of knowledge. These were the kind of conditions that s 43 of the Personal Injuries Act contemplated.

In the events that occurred Holmes J’s timetable was interrupted by the appeal to the Court of Appeal. The orders were vacated when the Court of Appeal, by majority, substituted its own orders dismissing each appellant’s application under s 43. Had such orders not been made, the orders of Holmes J would have quickly brought the proceedings to a consideration of the extension of the limitation Bar. But they would have done so in the proper place and at the proper time for decisions on such questions”.

In essence, his Honour was observing that consideration of the merits of a s 31 application ought not occur as part of an application akin to s 305 but at a subsequent appropriate time. In traditional litigation that time would ordinarily have been regarded as being in the course of proceedings once they are commenced. However, the pre-proceeding processes nowadays imposed in litigation like the present are onerous and involve the conduct of significant work, much of which in traditional litigation tended only to occur after the commencement of proceedings. In the context of litigation of this kind it is appropriate that the question of whether a s 31 extension will be granted not await the commencement of proceedings, but instead occur near the outset of the pre-proceeding process.

I am fortified in arriving at that view by s 305(2) which provides:

“The order giving leave to bring the proceeding may be made on the 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”.

Here it is apparent WorkCover would suffer prejudice from the failure to comply with the requirements of s 280 in the sense it will not otherwise have the certainty of a notice under s 280 that it is within the limitation period. It would be exposed to the significant impost of the pre-proceeding procedure, vulnerable to the prospect that it might all be wasted or be of no benefit because the intended action is out of time. It should have the benefit of the certainty which compliance with s 280 would otherwise tend to provide rather than suffer the prejudice flowing from a lack of such certainty.

For these reasons I conclude there ought be conditions pursuant to s 305(2) which will ensure a timely determination of the limitation issue.

Brisbane Barrister – David Cormack

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