Hamling v Australia Meat Holdings Pty Ltd [2006] QCA 422

[1] JERRARD JA: This proceeding is an application for leave to appeal, pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld), from an order made on 7 April 2006 dismissing, with costs, an application filed by the present applicant ("the employer") on 4 January 2005, seeking inter alia orders striking out a claim and statement of claim filed in the District Court on 23 December 2003. The employer submits the learned judge erred in various ways, including failing to apply the decision of this Court in an earlier appeal between the same parties, Hamling v Australia Meat Holdings Pty Ltd [2006] 2 Qd. R. 235.[1] The application also alleges the judge erred both in finding on the facts that the employer had waived the respondent's obligation to comply with s 303 of the WorkCover Queensland Act 1996 (Qld) ("the Act"), and also in law in holding there could be waiver by the employer of the requirements of that section.

[2] Mr Hamling has been endeavouring to bring a claim for damages against the employer, which as pleaded was based on claims of negligence, breach of the contract of employment, and breach of statutory duty. That claim was accordingly based on liability, including at common law, arising independently of the Act,[2] although that legislation imposed rigorous controls on the steps Mr Hamling was obliged to take before bringing those proceedings.

[3] I outlined the chronology in my judgment in the earlier appeal, but repeat it here, with one minor correction and some additions, to help explain this judgment.

• the respondent ("the claimant") was injured on 2 January 2001;

• he gave a notice of claim to the employer (a self-insurer) under s 280[3] of the Act, dated 22 October 2003 and received on 3 November 2003. This Court upheld, in the earlier appeal, a finding that the notice did not comply with the strict requirements of the Act;

• by application dated 19 December 2003 filed in the District Court, the claimant applied in that court for leave pursuant to s 305 of the Act to start proceedings against the employer for damages for personal injuries sustained on 2 January 2001, despite not having complied with s 280 of the Act;

• by an order made 19 December 2003 by Noud DCJ, the claimant was granted leave to commence proceedings in respect of those injuries, subject to his complying with the provisions of Ch 5, Pts 5 and 6 of the Act;

• proceedings in the District Court were filed on 23 December 2003. Those proceedings were filed in breach of the requirement in s 303 of the Act, that a claimant given leave under s 305 must wait for six months after the grant of leave before starting proceedings;

• the limitation period expired on 2 January 2004;

• the employer's solicitors advised on 5 February 2004 that the notice of claim given on 19 December 2003 was deemed compliant on 4 February 2004,[4] after the limitation period had expired;

• on 3 August 2004 the employer delivered a written notice under s 285 of the Act, denying liability, rejecting the claimant's offer, offering to settle for "$nil", and reserving rights under the Limitation of Actions Act 1974 (Qld);

• on 27 October 2004 the compulsory conference required by s 293 of the Act was held;

• on 23 November 2004 the District Court proceedings filed on 23 December 2003 were served on the employer;

• on 21 December 2004 the employer entered a conditional notice to defend in the District Court, pursuant to the Uniform Civil Procedure Rules 1999 (Qld) 144. That notice complained of the proceeding beginning in the Brisbane Registry, rather than the Ipswich Registry;

[4] Mr Hamling's lawyers filed the District Court proceedings on 23 December 2003, in contravention of the requirement in s 303, because of the fast approaching expiry of the period of limitation. In fact s 308(1)(a)(iv) effected an extension of that period of limitation, because of the leave granted under s 305, although one can understand Mr Hamling's legal representatives being concerned about the limitation period expiring. The extension granted by s 308 had the effect that, because the compulsory conference was held on 27 October 2004, Mr Hamling had 60 days after that date within which to bring his proceedings. He in fact filed proceedings in the Supreme Court on 24 December 2004, which could properly have been filed in the District Court, had he not filed them approximately 10 months too early on 23 December 2003. Those proceedings in the Supreme Court were struck out because that court had not given leave under s 305 to bring proceedings in it, and because that court held no complying notice of claim had been given before the end of the period of limitation. Both those conclusions were upheld on the appeal in this Court.

[5] This Court's judgment upheld the employer's claim that the Act does impose strict requirements in s 280 as to the contents of a notice, and that Mr Hamling had not provided information in relation to hospital and medical expenses which he was obliged by s 280 to provide to the employer, and which were contained in a notice of charge by the Health Insurance Commission (HIC) dated 16 January 2004. Mr Hamling's solicitors provided that to the employer by letter dated 3 February 2004.

"280 Notice of claim for damages

(1) Before starting a proceeding in a court for damages, a claimant must give notice under this section within the period of limitation for bringing a proceeding for the damages under the Limitation of Actions Act 1974.

...

(3) The notice must include the particulars prescribed under a regulation."

Section 282 provides for responses by WorkCover or an employer, which can relevantly include that the employer is satisfied that the notice of claim is a complying notice, or, if not so satisfied, identifying the noncompliance and stating the employer waives compliance with the requirements (of the Act), and if the employer does not so waive compliance, permitting a reasonable period within which the claimant can so comply. That section gives WorkCover or an employer an important statutory right of waiver.

[7] Section 285 requires that WorkCover (or, as here, a self-insured employer) must endeavour to resolve a claim as quickly as possible, and the employer must give the claimant a written notice stating whether liability is admitted, and responding to any offer of settlement by a claimant. That notice must be given within six months after receiving a complying notice of claim, or within six months after waiving the claimant's noncompliance, or (relevantly to this matter) within six months of a court making an order under s 305. Section 293 makes provision for a compulsory conference between the parties, to be held within three months after WorkCover gives the claimant the written notice required under s 285, or if the parties agree, on a later date.

[8] Section 302 provides that a claimant may start a proceeding in a court for damages only if the claimant has complied with:

"(a) the relevant division under part 2, to the extent the division imposes a requirement on the person; and

(b) part 5, other than as provided by section 304 and 305; and

"The claimant may start the proceeding if any of the following have happened -

(a) at least 6 months or, for a terminal condition, 3 months have elapsed after -

(i) the claimant has given, or is taken to have given, a complying notice of claim; or

(ii) WorkCover has waived the claimant's noncompliance with the requirements of section 280 with or without conditions; or

(iii) the court has made an order under section ... 305;"

"305 Court to have given leave despite noncompliance

(1) Subject to section 303, the claimant may start the proceeding if the court, on application by the claimant, gives leave to bring the proceeding despite noncompliance with the requirements of section 280.

(2) The order giving leave to bring the proceeding may be made on conditions the court considers necessary or appropriate to minimise prejudice to WorkCover from the claimant's failure to comply with the requirements of section 280."

"308 Alteration of period of limitation

(1) A claimant may bring a proceeding for damages for personal injury after the end of the period of limitation allowed for bringing a proceeding for damages for personal injury under the Limitation of Actions Act 1974 only if -

(a) before the end of the period of limitation -

(i) the claimant gives, or is taken to have given, a complying notice of claim; or

(ii) the claimant gives a notice of claim for which WorkCover waives compliance with the requirements of section 280 with or without conditions; or

(iii) ...; or

(iv) a court gives leave under section 305;"

[12] The learned judge who dismissed the employer's strike out claims, remarked on 7 April 2006 upon the oppressive zeal with which the employer had challenged the claimant's notice of claim provided pursuant to s 280. Those challenges are described in the earlier judgment in this Court. The judge also came to the view that that notice of claim became a complying notice of claim no later than 8 December 2003, namely before the end of the limitation period. The judge so concluded because the judge considered that this Court had overlooked, in its earlier decision, an important matter of fact. That was that the employer had stated in correspondence, dated 10 November 2003, that it did not waive compliance with the requirements of the Act, and specifying where the employer said the notice was noncompliant. The employer's letter required the claimant's solicitors to, inter alia, provide an undertaking to provide the employer with an HIC Notice of Charge within seven days of receipt of it. The claimant's solicitors replied on 5 December 2003, enclosing documents, and undertaking to provide that notice of charge within seven days of receipt. As the learned trial judge pointed out, and as indeed overlooked by myself in my earlier judgment, correspondence from the employer dated 10 December 2003, in which the employer asserted that it had not received the undertaking to provide that notice of charge within seven days, was inaccurate; that undertaking had been provided five days earlier. The learned trial judge accordingly observed that the statement made on 10 December by the employer, about non-receipt of the undertaking, was plainly incorrect.

[13] The learned judge noted that this Court had relied on the fact that the claimant had failed to particularise his HIC claim when holding that the notice of claim was noncompliant, and the judge wrote that HIC charges had, in the learned judge's view, no practical impact on the resolution of a claim, and constituted only a very small if not miniscule proportion of a plaintiff's claim for damages and claims of the type under consideration. The learned judge then found that that notice of claim had become a complying notice of claim by no later than 8 December 2003, when the letter dated 5 December 2003 was received.

[14] I observe with respect that that view was in conflict with the decision of this Court on the first appeal. That is because this Court held that the information required in relation to the HIC claim, namely hospital and medical expenses by way of special damages, was only provided at the earliest on 16 January 2004, after the end of the limitation period. All members of this Court held that it was not until that information was provided that the notice became a complying one.[8]

[15] The learned trial judge was certainly entitled to take the view that the provision of the undertaking had been overlooked by me, but was obliged to reflect that this Court's judgment required that for compliance with the Act, it was the information in the HIC's notice of charge which the claimant had to provide, not an undertaking to do so. The claimant may have had a good argument that the employer had, pursuant to s 282 of the Act, agreed to waive compliance on receipt of the undertaking to provide the certificate when obtained. Indeed, it would be hard to avoid that conclusion, and if that was the only relevant noncompliance, that would engage s 303(a)(ii) of the Act. But waiver under s 282 was not the way the claimant argued the case in either the Supreme or District Court, or on the first appeal. His counsel argued that the notice was a complying one.

[16] That waiver would have taken effect on or about 8 December 2003, i.e. on receipt of the letter of 5 December 2003. The learned trial judge held it actually became a complying notice of claim no later than 8 December 2003, but the consequences of that conclusion, though not open to the judge, are the same as the conclusion that the waiver occurred then. That consequence is that s 303(a) allowed the claimant to start the proceeding if six months had elapsed after 8 December 2003.

[17] As the learned trial judge recorded, the claimant, from an abundance of caution, then obtained leave on 19 December 2003 to start proceedings despite noncompliance with the requirements of s 280. Section 303(a)(iii) required that at least six months elapse after that date before the respondent started the proceeding. So whether the claimant had given a complying notice of claim as the trial judge held, or whether the employer had waived the need for compliance, as the claimant could argue, or whether Mr Hamling was correct in the view that he should get leave, as he did, s 303 allowed him to start the proceeding only by 8 June 2004 at the earliest. In fact he started it on 23 December 2003, and served the documents on 23 November 2004. The employer applied within six weeks of that service for a declaration that the claimant had not complied with the requirement that six months elapse before the proceedings start after the notice, the waiver, or the order under s 305. Had the claimant complied with the Act, particularly with s 308(2), he would have brought his proceedings within 60 days after the compulsory conference was held on 27 October 2004, i.e. on or before 24 December 2004, the day he actually began proceedings instead in the Supreme Court.

[18] It was common ground between the parties on this appeal that the recent decisions of the High Court in Brighton Und Refern Plaster Pty Ltd v Boardman [2006] HCA 33; (2006) 225 CLR 402 and Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364, while involving consideration of different legislation, express principles and matters relevant in construing the Act and in determining the strike out application. Those matters include that s 303 does not inevitably result in the invalidity of proceedings commenced in contravention of it, because the section does not extinguish rights or create new ones. Rather it postpones the remedy for the common law right to initiate proceedings in a court of competent jurisdiction. Proceedings commenced in contravention of s 303 do engage the jurisdiction and procedural rules of the court. Such proceedings are vulnerable to an application by a defendant to strike out the initiating process or to move for summary dismissal.[9] Those conclusions reached in Berowra Holdings v Gordon apply here because, while the Act describes in s 253 the only persons entitled to seek damages for an injury sustained by a worker,[10] the basis of the liability sought to be enforced is principally sourced in common law duties of care. What the Act does is regulate, rigidly, the procedures by which damages can be claimed for breach of those duties. That makes the statements in Berowra Holdings v Gordon applicable.

[19] Another and quite different matter clarified in the joint judgment in Berowra Holdings v Gordon was that, for the trial judge to embark on a consideration of what was involved in the strike out application by considering whether there was a "waiver" by the employer of its rights, was an unproductive exercise. Once it was appreciated that the District Court had jurisdiction and that its procedural rules had been engaged, concepts such as waiver, acquiescence and estoppel, were confusing and imprecise.[11]

[20] The judgments in Berowra Holdings v Gordon and Brighton v Boardman emphasise the discretionary power vested in a court hearing an application by a party for the exercise in its favour of a power of a court, including a strike out power, and remark that numerous[12] and many different[13] factors will be relevant to that discretionary decision. Matters relevant to the determination of the strike out application, adverse to this claimant, would include that he did contravene s 303 by filing his claim and thereby starting the proceeding against the employer, when at least six months had not elapsed after either waiver of his obligation to comply with s 280 or the court making an order under s 305. I do not accept the submission by Mr Myers that s 303 should be construed as permissive, allowing a claimant to start a proceeding before the six months has elapsed; that construction is not available because of the provision in s 302 that a claimant may start a proceeding in a court for damages only if the complainant has complied with, inter alia, s 303. Mr Myers' construction would have the effect of giving s 303 no work to do at all. To the contrary, the clear purpose of s 303 is, as was submitted by Mr Griffin QC, to allow WorkCover or a self-insured employer a period of six months after the relevant event (receipt of a complying notice, waiving noncompliance, or an order under s 305) within which to investigate and consider the claim, and without being involved in the expense and requirements of potentially avoidable legal proceedings. Also telling against the claimant in this proceeding is the fact that he did avail himself of the provisions of s 308(1)(a)(iv) and s 308(2), in his attempts to start a proceeding in December 2004 in the Supreme Court. He could have discontinued the vulnerable District Court proceeding, and begun one in that court that did comply with the Act.

[21] But in the claimant's favour is that the proceedings instituted in breach of s 303 were not a nullity.[14] The objects of the Act described in s 5 thereof include providing for the protection of employers' interests in relation to claims for damages for workers' injuries (s 5(4)(c)). The description in s 5(2) of the main provisions of the workers' compensation scheme established by the Act includes regulation of access to damages for injuries sustained by workers in their employment. Because Mr Hamling only served the employer in November 2004 with the proceeding in the District Court filed in December 2003, the employer in fact enjoyed the six month "moratorium" intended by s 303, in which to investigate the claim, and also the opportunity given by s 308 to participate in a compulsory conference, before being embroiled in litigation.

[22] Mr Hamling certainly had his access to damages regulated. He had provided all the information required by the Act to the employer shortly after filing the District Court claim and more than six months before serving it; the employer was in no way disadvantaged by any lack of knowledge of even the miniscule details of that claim. Had the claimant complied strictly with the Act, he would have filed his proceeding in the District Court somewhere between 10 to 12 months later than the date on which he actually did, and in all likelihood would then have served the employer on or about the date on which it was actually served with the claim filed in December 2003. The employer thereby lost no benefit to which it was entitled by the Act because of the claimant's error in filing the proceedings before the date permitted by s 303, and his error lay in attempting to protect himself against the expiry of the limitation period. He had sought and been granted leave before the expiry of that period to bring a claim despite noncompliance with s 280; and if the claim filed on 23 December 2003 was struck out, the claimant would be thereby shut out from a claim on the merits against the employer, despite many efforts on his part to comply with the provisions of the Act regulating his access to damages. Dismissing the strike out application would seem more consistent with achievement of the quoted objects described in s 5 of the Act than would striking it out, since the employer had had the benefit of the protection the Act intended for employers. The objects sought to be achieved in s 303 and s 308 are a means of an end, not an end in themselves, and those objects were achieved in this matter. Finally, the employer had filed an unconditional notice of intention to defend and defence on 3 February 2005, which did not relevantly plead any breach of s 303, despite the strike out application it had filed on 4 January 2005.

[23] Those matters in toto would have justified the learned judge in exercising the discretion to decline to strike out Mr Hamling's claim, despite his noncompliance with the Act in bringing it when he did. Accordingly the learned judge actually had proper grounds on which to dismiss the strike out application, although the judge incorrectly relied on other grounds. The employer seeks leave to appeal, to correct the learned judge's reliance on findings of waiver, explained as largely irrelevant in the decisions in Berowra Holdings v Gordon and Brighton v Boardman. Those decisions make it unnecessary on this application to grant leave to rule on whether or not such a waiver could occur. I note that when refusing the application for special leave, Gleeson CJ said that the judges hearing the application were not persuaded that the interest of justice required it be granted, and:

"We say that particularly having regard to the decision ... recently given in the District Court in Queensland."[15]

The learned Chief Justice was referring to the decision the subject of this application; His Honour had earlier remarked that if this Court declined to grant leave to appeal from that decision, the case would be dealt with on its merits. Because of the matters which justify an order dismissing the strike out application, and because of those remarks by the Chief Justice of the High Court of Australia, I am satisfied that justice is best served in this matter by refusing leave to appeal.

[24] Accordingly, I would order that the application for leave to appeal be dismissed, and that the applicant pay the respondent's costs of and incidental to the application.

[25] HOLMES JA: I have read and agree with Jerrard JA's reasons for judgment and the orders proposed.

[26] MACKENZIE J: I agree with Jerrard JA's proposed orders for the reasons he gives.

[1] [2005] QCA 415; Appeal No 4149 of 2005, 11 November 2005.

[2] See Tanks v WorkCover Queensland [2001] QCA 103; Appeal No 9435 of 2000, 27 March 2001.

[3] Section 119 of the Act confers on a self-insurer the functions and powers of WorkCover under the provisions of the Act relevant to this matter.

[5] [2006] HCA 33; S479 of 2005, 15 June 2006.

[6] [2006] HCA 32; S473 of 2005, 15 June 2006.

[7] Hamling v Australian Meat Holdings Pty Ltd [2006] HCA Trans 409 (4 August 2006).

[8] Hamling v Australia Meat Holdings Pty Ltd [2006] 2 Qd. R. 235 at 239 (Jerrard JA), 248 (Keane JA) and 248 (Douglas J).

[9] See Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364 at 376-377 (joint judgment of Gleeson CJ, Gummow, Hayne, Heydon, and Crennan JJ).

[10] See Watkin v GRM International Pty Ltd [2006] QCA 382; Appeal No 3815 of 2006, 29 September 2006, where this Court recently considered the proper construction of the Workers' Compensation and Rehabilitation Act 2003 (Qld) and its earlier decisions on the Act, and repeated that a provision similar to s 253 in the latter Act exhaustively described those people who might seek common law damages.

[11] See Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364.

[12] See Brighton Und Refern Plaster Pty Ltd v Boardman [2006] HCA 33; (2006) 225 CLR 402 at 407 of the joint judgment.

[13] See Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364 at 377.

[14] See Berowra Holdings v Gordon at 376.

[15] Hamling v Australian Meat Holdings Pty Ltd [2006] HCA Trans 409 (4 August 2006), at lines [824]-[826].