SUPREME COURT OF QUEENSLAND CITATION: PARTIES: Andrews v BDS Technical Services P/L & Anor [2003] QSC 469 GRANT JASON ANDREWS v BDS TECHNICAL SERVICES PTY LTD ACN 010 645 619 (first respondent) NETWORK DESIGN AND CONSTRUCTION LIMITED ACN 086 174 781 (second respondent) FILE NO: SC No 10713 of 2003 DIVISION: PROCEEDING: ORIGINATING COURT: Trial Application Supreme Court at Brisbane DELIVERED ON: 17 December 2003 DELIVERED AT: Brisbane HEARING DATE: 15 December 2003 JUDGE: ORDER: Douglas J Order that the applicant have leave to commence proceedings against the first respondent pursuant to s. 77D(2)(b) of the Personal Injuries Proceedings Act 2002 not later than the end of 18 December 2003. Authorise the applicant to proceed further with his claim despite his non-compliance with the time for giving notice pursuant to s. 9 of the Personal Injuries Proceedings Act 2002 and give leave to him to commence proceedings against the second respondent pursuant to s. 77D(2)(b) not later than 18 December 2003. CATCHWORDS: LIMITATION OF ACTIONS PERSONAL INJURIES where applicant seeks leave to commence proceedings against first respondent pursuant to s 77D PIPA where applicant previously commenced proceedings against first respondent under WorkCover Queensland Act - where applicant was not a worker within meaning of WorkCover Queensland Act whether applicant s common law rights have been abolished by WorkCover Queensland Act whether proceedings commenced pursuant to WorkCover Queensland Act a proceeding based on the claim for purposes of s 77D(1)(b) PIPA whether applicant should be
2 given leave to commence proceedings against first respondent pursuant to s77d(2)(b) PIPA LIMITATION OF ACTIONS PERSONAL INJURIES - where applicant seeks leave to commence proceedings against second respondent pursuant to s 77D PIPA where notice of claim non-compliant as delivered out of time where second respondent not a party to proceedings under WorkCover Queensland Act and had no previous notice of claim whether having regard to circumstances applicant should be given leave to proceed with claim pursuant to s 18(1)(c)(ii) despite non-compliance whether applicant should be given leave to commence proceedings against second respondent pursuant to s 77D(2)(b) PIPA COUNSEL: SOLICITORS: R Treston for the applicant M Evans for the first respondent S Farrell for the second respondent Sciacca s Lawyers & Consultants for the applicant Porter Davies for the first respondent Sparke Helmore Solicitors for the second respondent [1] DOUGLAS J: The applicant was injured at work on 7 October 1999 and commenced earlier proceedings in this Court on 19 September 2002 relying in part on an allegation that he was a worker and that the first respondent to this application was his employer within the meaning of the WorkCover Queensland Act 1996. The point was taken against him in those proceedings that he was not a worker because he was not a PAYE taxpayer. That point appears to have been well made. After taking counsel s advice the applicant then issued a part 1 notice of claim under the Personal Injuries Proceedings Act 2002 ( PIPA ) on 20 August 2003. It was not responded to by the first respondent within one month with the consequence that, pursuant to s. 13 of PIPA, the first respondent is conclusively presumed to be satisfied that it was a complying part 1 notice of claim. [2] Mr Evans for the first respondent relies on the decision of the Court of Appeal in Hawthorne v Thiess Contractors Pty Ltd [2002] 2 QdR 157 where the Court decided that the appellant s failure to comply with the WorkCover Queensland Act meant that he was unable to seek damages either under the Act or at common law. The argument for the appellant at 159 [4] was that his common law rights remained alive where his employment was merely a contributing factor but not a significant contributing factor. Applying a purposive approach to the construction of the Act the Court concluded that it precluded recovery except under its provisions. [3] It is a long way to travel from that conclusion to the argument that all of the applicant s common law rights have been abolished by the WorkCover Queensland Act even though he fell outside the definition of worker within that legislation because he was not a PAYE taxpayer. Section 253 which imposes a general limitation on persons entitled to seek damages by reference to the definition of worker does not suggest such a result. The assertion by Mr Evans that the
3 applicant still has the possibility of an ex gratia payment under s. 562 does not lead to the conclusion that his common law rights have otherwise been removed. I disagree with that submission. [4] The first respondent also resists this application on the basis that the application for leave to commence proceedings under s. 77D of PIPA, after the expiration of the period of limitation, fails because of the applicant s earlier proceedings pursuant to the WorkCover Queensland Act. The argument is based on the language of s. 77D(1) that the section applies if the period of limitation ends during the period starting 18 June 2002 and ending at the end of 18 December 2003 and a proceeding has not been started in a Court. [5] The argument is that the existence of the earlier proceeding which relied on the WorkCover Queensland Act is a proceeding based on the claim that has been started in a Court for the purposes of s. 77D(1)(b). The words the claim in that subpara. refer back to s. 77D(1)(a), a claim for the personal injury which itself needs to be analysed by reference to the balance of the Act. Ms Treston s argument for the applicant is that claim is defined in the Act s dictionary to mean a claim for damages based on a liability for personal injury. She goes on to say that s. 6(2)(b) provides that the Act does not apply to injury as defined under the Workers Compensation and Rehabilitation Act 2003 (the successor to the WorkCover Queensland Act) but only to the extent that an entitlement to seek damages, as defined under that Act, for the injury is regulated by chapter 5 of that Act. She also points to the wording of s. 9 in support of the argument that the claim in s. 77D(1) is a claim pursuant to PIPA and argues, in reliance on Nicholls & Ors v. Brisbane Slipways and Engineering Pty Ltd [2003] QSC 193 at [12] that the earlier proceedings here were a nullity for the purposes of PIPA. [6] I accept those submissions also because of the presumption against the invasion of common law rights. Accordingly I propose to give the applicant leave to commence proceedings against the first respondent pursuant to s. 77D(2) of PIPA by no later than 18 December 2003. [7] The situation of the second respondent is different. Its solicitors responded to the notice within time so it is not presumed to be satisfied of the notice s compliance with the Act. It argues that the notice of claim was delivered almost 8 months late and is thereby non-compliant. Mr Farrell also submits that there has been no reasonable excuse for the delay given pursuant to s. 9(5) of PIPA. The applicant s solicitor s affidavit explained the delay by reference to the applicant s hope that his injury would resolve without the need to litigate because of treatment he had received under the Comcare scheme and his belief that he was an employee of the first respondent. It was only after WorkCover rejected the applicant s application for a damages certificate on the basis that he was not a PAYE taxpayer that the solicitor sought and received counsel s advice and initiated the claims procedure under PIPA. [8] That does not explain completely or clearly why nothing was done earlier to notify the second respondent. It was not a party to the earlier proceeding under the WorkCover Queensland Act and had no earlier notice of the claim until it was served with the notice relevant to this application on 20 August 2003 in respect of an incident that occurred almost 4 years before, on 7 October 1999. It responded to the notice through its solicitors letter of 18 September 2003 pointing out a number
4 of issues of non-compliance. The applicant s letter of 23 September 2003 provided answers to most of those enquiries. Its alleged involvement is as the entity that engaged the first respondent to do work for it and as having organised and supervised the applicant in the performance of his duties. Mr Kartelo, the applicant s solicitor, says that it was only after the applicant s application for a damages certificate under the WorkCover Queensland Act was rejected and he subsequently received counsel s advice that it became evident to him that claims should be made against both first and second respondents; see para. 8 of his affidavit filed by leave on 15 December 2003. [9] The first issue is whether I should make a declaration under s. 18(1)(c)(ii) of PIPA authorising the applicant to proceed further against the second respondent despite his non-compliance with PIPA. Mr Farrell points to the decision in Thomas v Transpacific Industries Pty Ltd & Anor [2002] QCA 160 at [26]-[31] as identifying some relevant considerations where non-compliance with similar statutory provisions was in issue. [10] The failure to bring proceedings or give notice within the normal limitation period under the Limitation of Actions Act 1974 assumes less significance here because of the explicit power to issue proceedings under s. 77D outside that period. If a complying notice had been given by 29 December 2002, as the second respondent says should have been done, would it have been in any substantially different position than it is now, notice having been given on 20 August 2003 and the information in it having been fleshed out a little by the solicitors letter of 23 September 2003? There is no evidence to suggest any further prejudice arising during that period other than the already existing delays since 7 October 1999 when the applicant was injured. [11] The overall delay, however, without prior notice, is significant. The failure of the applicant to give notice earlier is explained to some extent by his own hope that his condition would settle and his solicitors uncertainty about where and how to bring proceedings. That level of uncertainty consequent upon numerous legislative changes in this area in recent years is a relevant factor in the exercise of my discretion; see Abell v Roche Mining Pty Ltd (S536 of 2003; 25 November 2003 at p. 3-4 per Dutney J). The recent delays are explicable more by reference to the conduct of the applicant s solicitors of his claim than any inaction by him. In those circumstances, if there is fault to be attributed, it ought not generally be ascribed to the applicant; cf. Perdis v Nominal Defendant [2003] QCA 555 at [11]. It is also relevant that it is the second respondent who is alleged to have requested the applicant to lift a 150 kg backhoe bucket 1.3 metres, the lifting said to have caused his injuries; see para. 5 of Mr Kartelo s affidavit filed 26 November 2003. This evidence is relevant to his chances of success in an action and to my exercise of a discretion in his favour; cf. Thomas v Transpacific Industries Pty Ltd & Anor at [32]-[34]. On balance, therefore, I have reached the view that he should have leave to commence proceedings. [12] Accordingly I will authorise the claimant to proceed further with the claim pursuant to s. 18(1)(c)(ii) of PIPA and give leave to him to commence proceedings against the second respondent pursuant to s. 77D(2)(b). [13] My orders will be:
5 I order that the applicant have leave to commence proceedings against the first respondent pursuant to s. 77D(2) of the Personal Injuries Proceedings Act 2002 not later than the end of 18 December 2003. Further I authorise the applicant to proceed further with his claim despite his noncompliance with the time for giving notice pursuant to s. 9 of the Personal Injuries Proceedings Act 2002 and give leave to him to commence proceedings against the second respondent pursuant to s. 77D(2)(b) not later than 18 December 2003. I shall hear the parties as to costs.