**CITATION:** _Phipps v Australian Leisure Group & Anor_ [2006] QSC 327 - QSC 2006 case summary

Supreme Court of Queensland|2006-10-20|Before: Dutney J

[1] The applicant ("the worker") has applied for leave pursuant to s 298 of the Workers Compensation and Rehabilitation Act 2003 to bring proceedings in relation to injuries allegedly sustained on 14 January 2003, despite non-compliance with the requirements of s 275 of the Act.

[2] Alternatively, the worker seeks a declaration that proceedings numbered S62/04 filed in the Mackay registry on 21 May 2004 ("the action") are valid and effective.

[4] The relevant facts can be stated in short compass.

[5] The worker claims to have been injured at work. She experienced sharp pain in her right neck and shoulder on 14 January 2003 while carrying cartons of beer.

[6] In November 2003 the pain spread to her right shoulder and thereafter she developed a depressive illness.

[7] A conditional damages certificate was sought from October 1999 on the basis that the injury was incurred as a result of activities carried out by the worker throughout the period of her employment. A conditional damages certificate was issued for the period from October 1999 until 30 June 2001 after which date the regulatory system had changed so that conditional damages certificates were no longer available.

[8] The action was commenced on the basis of the conditional damages certificate.

[9] Notices of Assessment were requested for the injuries but apart from the conditional damages certificate to which I have referred no certificate or Notice of Assessment had issued by January 2006.

[10] In August 2006 the claim for an over time injury for the period leading up to 13 January 2003 was rejected on the basis of specialist orthopaedic opinion. The claim for the event on 14 January 2003 was accepted and a WRI of 18% assessed.

[11] Therefore, the action, insofar as it relates to the event on 14 January 2003 was commenced without compliance with the pre-court procedures mandated by Part 5 of Chapter 5 of the Act.

[12] The consequence of failing to comply with the pre-court procedures under the Act has not been authoritatively considered. There is, however, no material difference for present purposes between those procedures and the corresponding procedures in the WorkCover Queensland Act 1996, which the Act repealed. In relation to the repealed legislation the Court of Appeal in Roberts v Australia and New Zealand Banking Group Ltd [2005] QCA 470 (16 December 2005), and Wilkinson v Stevensam Pty Ltd & Ors [2006] QCA 88 (24 March 2006) held that failure to comply with the mandated procedures rendered any proceedings commenced in a Court void. The Court of Appeal also held that this Court has no power to grant leave retrospectively to bring the proceedings under the precursor to s 298 of the Act.[1]

[13] The effect of these decisions is that the action is void and should be struck out.

[14] Since the decisions of the Court of Appeal in Queensland, the High Court, on appeal from the Court of Appeal in New South Wales in Berowra Holdings Pty Ltd v Gordon [2006] HCA 32 (15 June 2006) has considered the roughly analogous provisions of the Workers Compensation Act 1987 (NSW).

[15] The New South Wales provisions are, in terms, quite different from those in Queensland. However, their effect is similar in that the right to commence an action is postponed. Senior counsel for the worker has submitted that the decisions of the Court of Appeal and that of the High Court are incompatible and the Court of Appeal's decisions should no longer be followed. Whether this argument is correct may be affected by the proper construction and application of s 235 of the Act, which makes the provisions of Chapter 5 provisions of substantive law. In any event, it is not necessary for me to consider this point.

[16] The decision of the High Court is to the effect that an action commenced in breach of the postponement is valid unless set aside. It is liable to be set aside if the failure to comply with the statutory scheme is pleaded in response to the action or some other step contemplated by the rules of Court is taken to have the proceedings struck out.

[17] In Berowra non-compliance with the statutory scheme was not raised until after the plaintiff had purported to accept an offer of settlement made by the defendant under the Rules of Court. The acceptance of the offer having brought the proceedings to an end, it was too late to raise the issue of non-compliance.

[18] Here, even if the action is valid unless set aside, the employer has applied to strike out the action under the rules. Since the action was commenced in breach of a statutory postponement of the right to commence it, it seems to me that the employer is entitled to the relief sought.

[19] The worker has argued that I should exercise my discretion to refuse the relief sought by the employer. The failure to comply with the pre-court procedures prior to commencing the action, once raised, is in my view, an absolute bar to the ultimate relief claimed in the action. In Berowra, the High Court drew an analogy with pleading a statute of limitations. Since the worker concedes that the proceedings were commenced in contravention of the statute, insofar as any event on 14 January 2003 is concerned, the action must ultimately be dismissed. It would not be a proper exercise of the discretion to strike out the action to allow it to continue and to allow both parties to incur further costs where to do so is inevitably futile.

[20] It follows that the alternative relief sought by the worker should not be granted and the employer's cross-application allowed.

[21] The application for leave to commence proceedings should also be refused. Whenever the worker's left shoulder symptoms and depressive illness arose, the cause of action for the event on 14 January 2003 was complete on that date. The limitation period in relation to it expired on 13 January 2006. Since it is not asserted that any new fact material to the bringing of the action became known after 14 January 2005, there is no basis for any enlargement of the limitation period applicable to the action. Section 302 of the Act permits a proceeding for damages for personal injury to be commenced after the expiration of the limitation period only in the event that one of the four matters enumerated in s 302(1)(a) has been satisfied before the expiration of the limitation period. Since none of those matters was satisfied before the expiration of the limitation period, to now grant leave under s 298 of the Act, would be futile.

[22] I therefore refuse the balance of the worker's application.

[23] In the result, I order that the worker's application be dismissed. I order that action S62/04 be struck out.

[1] Roberts at [31] - [35]; Wilkinson at [43].

CITATION: _Phipps v Australian Leisure Group & Anor_ [2006] QSC 327

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