LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATION
PERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS
– KNOWLEDGE
OF MATERIAL FACTS OF DECISIVE CHARACTER – GENERALLY – where the
Source
Original judgment source is linked above.
Catchwords
LIMITATION OF ACTIONS – EXTENSION OR POSTPONEMENT OF LIMITATIONPERIODS – EXTENSION OF TIME IN PERSONAL INJURIES MATTERS– KNOWLEDGEOF MATERIAL FACTS OF DECISIVE CHARACTER – GENERALLY – where theplaintiff suffered injuries at a worksite– where the plaintiff contendshe became aware of the contractual relationships between relevant parties out oftime –where the plaintiff applies to extend the limitation period –whether the plaintiff had knowledge of the contractual relationshipsbetweenrelevant parties within the limitation period – whether the contractualrelationships between relevant parties constitutesa material fact of a decisive
character – whether the plaintiff had taken all reasonable steps to find
out the contractual
relationships between the relevant parties before such
information was disclosed to him – whether the extension of the limitation
period should be granted
Personal Injuries Proceedings Act 2002
(Qld), ss 14, 16, 18, 20, 27, 37, 43, 59
Limitations of Actions Act
1974 (Qld), ss 11, 30, 31
Uniform Civil Procedure Rules 1999
(Qld), rr 69, 169, 377
Workers Compensation and Rehabilitation Act
2003 (Qld), ss 279, 290A
Anderson v Gofish Pty Ltd & Ors [2017] QSC 30
Brisbane
South Regional Health Authority v Taylor (1996) 186 CLR 541
Dick v
University of Queensland [2000] 2 Qd R 476
Do Carmo v Ford Excavations
Pty Ltd [1984] HCA 17
(1984) 154 CLR 234
Moriarty v Sunbeam Corporation Limited
[1988] 2 Qd R 325
NF v State of Queensland [2005] QCA 110
Sugden
v Crawford [1989] 1 Qd R 683
Wolverson v Todman [2015] QCA 74
[2016] 2 Qd R
106
Judgment (81 paragraphs)
[1]
LIMITATION OF ACTIONS - EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS - EXTENSION OF TIME IN PERSONAL INJURIES MATTERS - KNOWLEDGE OF MATERIAL FACTS OF DECISIVE CHARACTER - GENERALLY - where the plaintiff suffered injuries at a worksite - where the plaintiff contends he became aware of the contractual relationships between relevant parties out of time - where the plaintiff applies to extend the limitation period - whether the plaintiff had knowledge of the contractual relationships between relevant parties within the limitation period - whether the contractual relationships between relevant parties constitutes a material fact of a decisive character - whether the plaintiff had taken all reasonable steps to find out the contractual relationships between the relevant parties before such information was disclosed to him - whether the extension of the limitation period should be granted
[1] On 9 January 2025 the plaintiff brought an application for the following orders:
[15]
(a) the plaintiff be granted leave to include Assured Concreting Services Pty Ltd (Assured) as a third defendant in the proceeding despite non-compliance with Chapter 2 Part 1 of the Personal Injuries Proceedings Act 2002 (Qld) (PIPA). The source of the power to seek that order was pursuant to ss 18(1)(c)(ii), 43(1) and 59(2) of the PIPA and r 69(1)(b) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR);
(b) the plaintiff be granted leave to amend the statement of claim to reflect the inclusion of Assured as the third defendant in the proceedings, pursuant to r 377 of the UCPR;
(c) pursuant to s 31(2) of the Limitations of Actions Act 1974 (Qld) (LAA), the limitation period applicable to the plaintiff's claim against Assured for injuries sustained on 25 August 2019 be extended to a date 14 days after the order of the court; and
(d) assuming success in respect of those three orders, the plaintiff also sought directions as to the ongoing conduct of the proceedings, and an order for costs.
[16]
[2] At the heart of the application was the application to extend time pursuant to s 31(2) of the LAA. If leave is not given to extend time, none of the further orders which the plaintiff seeks will flow.
[3] The plaintiff was injured in a workplace accident on a construction site which occurred on 23 August 2019, therefore the ordinary limitation period expired on 24 August 2022 (LAA, s 11(1)).
[4] On 19 August 2022, the plaintiff commenced a proceeding in this court against the named first defendant claiming damages for those personal injuries. On 20 July 2023 the plaintiff commenced proceedings against the named second defendant. He did so having properly complied with the pre-court proceedings against both the PIPA defendant (the first defendant, who was the head contractor on the construction site) and his employer (the second defendant).
[5] The plaintiff now applies for leave to add Assured as a third defendant to his claim and requires leave to extend the limitation period against Assured in that regard.
[6] Assured appeared on the application and opposed the extension of the limitation period.
[7] The first and second defendants were served with the application and, prior to the hearing before me, were authorised by a Judge of this court not to appear upon the application as neither of them opposed it.
[17]
[8] The plaintiff's evidence, in an affidavit sworn 29 April 2025, was that he was injured on 23 August 2019 when a trench collapsed on him at a work site at Rothwell. He identified the first defendant, Evans Built Pty Ltd (Evans Built) as the head contractor on the site and the second defendant, Qld Tilt Panels Pty Ltd as trustee for the Qld Tilt Panels Family Trust, as his employer (Qld Tilt Panels).
[9] In contrast to that evidence, the plaintiff gave a statement to Workplace Health and Safety Inspector on 29 August 2019, that is less than a week after his accident, describing that he was employed as a site foreman by Assured Concrete Services Pty Ltd (who he thereafter referred to as ACS), of 27 Kooringal Court, Buddina, and had been for a period of greater than six years. That statement identified Evans Built as the principal contractor on the site and described that ACS were conducting work on the site under the direction of the principal contractor.
[10] I pause to observe that the evidence demonstrates:
[18]
(a) there is no such company as Assured Concrete Services Pty Ltd, nor is there any such business name. There is however a company, Assured Concreting Services Pty Ltd, whose place of business is 27 Kooringal Court, Buddina; and
(b) the plaintiff was never employed by Assured, his employer was the second defendant.
[19]
[11] Those errors can be explained by further evidence.
[12] When the plaintiff started working in 2013 as a concreter and foreman, the business was trading under the name "Assured Concreting Services". Between 2013 and 2 March 2016, the plaintiff understood that his actual employer was "The Trustee for Integral Concreting Services Family Trust", but the business traded under the name "Assured Concreting Services". The plaintiff always knew the person who carried on the business was Nicholas Chabau.
[13] Sometime after 2 March 2016, the plaintiff was told by Mr Chabau that the name of the employer was to be changed to "The Trustee for the Qld Tilt Family Panels Trust", and the reason was something to do with payroll tax. The business however continued to be known as Assured Concreting Services.
[14] There was no change to that trading name during the whole period that the plaintiff was employed there. The plaintiff says that he wore a work shirt and drove a work vehicle that each displayed the trading name "Assured Concreting Services".
[15] Production of the plaintiff's taxation records demonstrates that in the period 1 July 2015 to 2 March 2016, the plaintiff's employer was identified as "The Trustee for Integral Concreting Services Family Trust (ABN 29 584 334 198)". On 2 March 2016 the taxation records demonstrate the name of the employer changed to "The Trustee for the Qld Tilt Panels Family Trust (ABN 29 470 806 062)". The plaintiff remained employed by that employer until the time of his accident.
[16] The change of the name of the employer is therefore reflected in the plaintiff's payment summaries in evidence before me, but the business name remained unchanged throughout, Assured Concreting Services.
[17] The plaintiff was not cross-examined on his affidavit of 29 April 2025. He deposed in that affidavit that although he had a conversation with the Workplace Health and Safety Inspector, and signed the statement which the Inspector had prepared of 23 August 2019, at the time of the conversation he thought the Inspector already seemed to have information and documents about his accident. The plaintiff was not asked to provide payment records to identify the name of his employer, and he did not pick up the error in the statement that his employer was said to be "Assured Concrete Services Pty Ltd", when that was not the name by which he described the business. He says he described it as Assured Concreting Services, or ACS, with no reference to "Pty Ltd", or ACS. His concentration at the time of the statement was much more concerned with the detail of what had happened to him, and he did not notice the inaccuracy in the description which appeared in the employer's name.
[20]
[29] According to an affidavit of the now solicitor for the plaintiff, Mr McClymont, on 12 September 2023, the then solicitors for the first defendant disclosed to the then solicitors for the plaintiff, a copy of a design and construction contract for the relevant worksite. The parties to the agreement were identified as Evans Built as the main contractor, and Assured Concreting Services Pty Ltd atf Integral Concreting Services Family Trust as the subcontractor. The subcontract was in the form of Australian Standard 4903-2000 and was for a sum of $394,454.50. The contract included numerous attachments identified as Parts A to N. While the document is described in the affidavit and the exhibit marking as "the subcontract", on its face the bundle of documents so produced seems to be something more than that.
[30] First, page 102 of exhibit TAM-1 is a letter from Evans Built to Assured dated 28 March 2019. The subject line of that letter is entitled "NOTICE OF ACCEPTANCE", and in the body of the document the following appears:
[21]
"Your tender for the Supply and Installation of Concrete place & tilt panels is hereby accepted in the amount of $394,454.50 (Three Hundred and Ninety Four Thousand Four Hundred and Fifty Four Dollars and Fifty Cents) including GST, as detailed in the attached schedules.
[22]
The Formal Instrument of Agreement, AS4903-2000, which you will be required to sign, is being prepared and must be signed within fourteen (14) days of a date to be notified. Access to the Evans Built standard AS4903-2000 and Special Conditions via the Evans Built website was confirmed with the Subcontractor at the Tender Review Meeting (a copy of the signed tender review meeting minutes is attached to this notice of acceptance). The Subcontractor has agreed to be bound by the terms and conditions of the AS4903-2000 and the Special Conditions.
[23]
Please note the following dates applicable to your contract:
[24]
[31] There are several aspects of the letter, signed by Mr Toovey, Project Manager of Evans Built, which suggest that the contract terms are settled between the parties, including:
[25]
(a) the use of the terminology, "your tender...is hereby accepted...";
(b) a "contract commencement date" just days after the date of the letter; and
(c) that the letter identifies the subcontractor's obligations in terms of insurance, workplace health and safety, and GST.
[26]
[32] Against that, the formal agreement was still to be signed (see paragraph [30] above and [35] below).
[33] Second, pages 110 to 113 of exhibit TAM-1 is Schedule B to the subcontract agreement, being documentation identifying the scope of work. Numerous handwritten changes have been made to that document and each of the changes are initialled. No party has sworn to whose those initials are, but as the document is clearly signed by both Assured and Mr Toovey on behalf of Evans Built (see p 129), it can fairly be inferred that the initials are those of the signing parties.
[34] Third, pages 119 to 129 of exhibit TAM-1 are the Tender Review Meeting documents. These are the documents referred to in the second paragraph of Mr Toovey's letter of 28 March 2019 above.
[35] The Tender Review Meeting document contained a term on the last page which recorded:
[27]
"The Subcontractor must return the signed tender review minutes prior to any contract being formalised. By signing below, the Subcontractor agrees that it has reviewed, satisfied itself, and agreed to the terms set out in this document."
[28]
[36] The tender review minutes were signed by someone on behalf of Assured, presumably in accordance with the above term. Although the printed name and signature is difficult to read, Mr Chabau is identified as Assured's representative on the document, with his email and mobile number listed.
[37] It can be inferred that the Tender Review Meeting documents were signed sometime prior to Mr Toovey's letter of 28 March 2019 because that letter enclosed a signed copy of them.
[38] At the hearing before me there was, however, no challenge to Mr McClymont's evidence that the subcontract itself disclosed on 12 September 2023 was neither dated nor signed for, or on behalf of, either of the contracted parties.
[39] I pause to observe a few other things about the unsigned, subcontract document. It is agreed that the date of its disclosure was 12 September 2023. At that stage it was over four years since the plaintiff's accident had occurred, three years since the plaintiff had given his PIPA Notice of Claim to Evans Built, and 20 months since he had given his Notice of Claim to WorkCover. Despite the fact that both sets of pre-court procedures had therefore been on foot for a substantial period of time, with the attendant disclosure obligations that each involved,[1] neither respondent to the pre-court procedures had previously disclosed the document.
[40] Indeed, the compulsory conference for both claims had been held on 2 June 2023 some three months prior to when disclosure of the unsigned and undated subcontract was made, but the document had not been disclosed prior to, or at, that conference.
[29]
[41] Following the holding of the compulsory conference on 2 June 2023, the two proceedings were consolidated on 13 October 2023.
[42] Relevant paragraphs of the amended statement of claim are as follows.
[43] Paragraph 2A of the amended statement of claim pleaded:
[30]
"2A. The second defendant is, and at all material times to this proceeding was:
[31]
(a) A company duly incorporated according to law and capable of being sued;
[32]
(b) The trustee for the Qld Tilt Panels Family Trust;
[33]
(i) Within the meaning of that term as it is used in section 5 of the WHSA;
[34]
(ii) From premises located at 27 Kooringal Crescent, Buddina in the State of Queensland under the name or style "Assured Concreting Services"."
[35]
[44] At paragraph 4 of the amended statement of claim, the plaintiff then pleaded that the first defendant was the principal contractor responsible for the construction work (paragraph 4(a)) and that the second defendant was responsible for the performance of part of the construction work "under a subcontract with the first defendant" (paragraph 4(d)).
[45] By its defence of 26 October 2023, the second defendant admitted the allegations in paragraph 2A of the amended statement of claim, specifically therefore, admitting that it was the second defendant who carried on the business "Assured Concreting Services". The second defendant further admitted the allegation in paragraph 4(d) that it was the second defendant who was responsible for the performance of part of the construction work "under a subcontract with the First Defendant", though that work was limited to the placement of and construction of certain panel and footings.
[46] In contrast, the first defendant filed a defence on 23 November 2023 in which it admitted that it was the principal contractor as alleged at paragraph 4 of the amended statement of claim, but denied that it had entered into any contract with the second defendant "because it did not and says that it entered into a contract with Assured Concreting Services Pty Ltd atf Integral Concreting Services Family Trust (Assured Concreting Service) for Assured Contracting Services to conduct concreting works at the worksite".
[47] As at 23 November 2023 therefore, the plaintiff was faced with conflicting factual matters on the face of the pleadings; one being an admission that the second defendant was a party to the contractual arrangements with the first defendant, and one being a denial and a positive assertion that in fact the first defendant had entered into a subcontract with another party, Assured.
[48] Still, no signed contract was disclosed.
[49] The plaintiff filed a reply to the defence of the first defendant and, in relation to paragraph 4(d) of the defence, the plaintiff denied the allegations because:
[36]
"(a) The plaintiff was employed by the Second Defendant, (a fact admitted by the Second Defendant in its Defence filed in this proceeding);
[37]
(b) The Second Defendant was conducting a concreting business under the name or style "Assured Concreting Services", (a fact admitted by the Second Defendant in its Defence filed in this proceeding;
(c) The Second Defendant has admitted, in its Defence filed in this proceeding, that it was responsible for performing part of the construction work under a subcontract with the First Defendant."
[38]
[50] The first defendant did not file any rejoinder to the reply.
[51] The plaintiff did not seek any particulars of the first defendant's allegation that it entered into a contract with Assured Concreting Services Pty Ltd atf Integral Concreting Services Family Trust. The sort of particulars which may have been available almost certainly included whether the alleged contract was oral or in writing, if in writing to compel a production of it, the date of the alleged contract and the terms of the alleged contract.
[52] The plaintiff having filed a reply and there being no rejoinder to it, the pleadings were closed (UCPR, r 169).
[53] Pleadings having been closed, disclosure obligations arose under Chapter 7 of the UCPR.
[54] Disclosure took place by production of documents. Still no signed contract was disclosed.
[55] On 19 June 2024 the solicitors for the plaintiff wrote to the solicitors for the first defendant observing:
[39]
"In our client's Amended Statement of Claim, our client pleads that work was performed under a subcontract between the First Defendant and the Second Defendant. The Second Defendant admits that allegation.
[40]
That pleading is to be contrasted against the assertion by your client, the First Defendant, that it did not subcontract with the Second Defendant, but rather that it subcontracted Assured Concreting Services Pty Ltd to perform the subcontract works.
[41]
It is necessary for the parties to sort out this issue before Caseflow orders are settled upon on or before 15 July 2024."
[42]
[56] The solicitors for the plaintiff went on to observe that the first defendant had disclosed an unsigned copy of a subcontract between it and Assured (which I take to be a reference to the 12 September 2023 disclosure set out above), and called upon the first defendant to disclose all documents relevant to the issue about the subcontracting arrangement. The solicitors for the plaintiff set out a non-exhaustive list of the sorts of documents which they asserted might be so relevant including correspondence, quotations, tenders, meeting notes, diary records and the like.
[57] In response to that correspondence, a copy of a signed contract between the first defendant and Assured was produced on 2 July 2024. That contract appeared to be the same as the previously unsigned and undated contract which had been provided on 12 September 2023, but this copy of the contract was in fact signed and dated and included a covering letter addressed to Assured bearing the date of 4 April 2019.
[58] Mr McClymont deposed:
[43]
"At no time prior to 2 July 2024 did the plaintiff or [solicitors for the plaintiff] have a copy of the completed contract."
[44]
[59] The respondent, Assured, accepts those facts as correct.
[60] The plaintiff asserts that the provision of the signed and dated contract on 2 July 2024 constituted a material fact of a decisive character within the meaning of s 31 of the LAA, giving rise to the application for the extension of the limitation period and the joinder of the proposed defendant, notwithstanding the expiration of the primary limitation period.
[45]
[61] A claim for damages for personal injuries must be brought within three years of the cause of action arising.[2]
[62] However, s 31(2) of the LAA empowers the court to extend the period of limitation for an action, including for personal injury, where it appears to the court that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action, and that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation.
[63] Section 30 of the LAA defines both the material facts relating to a right of action, and material facts relating to a right of action that are of a decisive character as follows:
[46]
(1) For the purposes of this section and sections 31, 32, 33 and 34─
[47]
(a) the material facts relating to a right of action include the following─
[48]
(i) the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded;
[49]
(ii) the identity of the person against whom the right of action lies;
[50]
(iii) the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;
[51]
(iv) the nature and extent of the personal injury so caused;
[52]
(v) the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty;
[53]
(b) material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing─
[54]
(i) that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and
[55]
(ii) that the person whose means of knowledge is in question ought in the person's own interests and taking the person's circumstances into account to bring an action on the right of action;
[56]
(c) a fact is not within the means of knowledge of a person at a particular time if, but only if─
[57]
(i) the person does not know the fact at that time; and
[58]
(ii) as far as the fact is able to be found out by the person─the person has taken all reasonable steps to find out the fact before that time.
[59]
appropriate advice, in relation to facts, means the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts."
[60]
[64] The first inquiry therefore is whether the facts of which the plaintiff was unaware were material facts (s 30(1)(a)). Secondly, if the facts be material, were they of a decisive character (s 30(1)(b)). Thirdly, it must be ascertained whether those facts were within the means of knowledge of the applicant before the specified date (s 30(1)(c)).[3] Only once the answers to those questions are established in favour of the applicant should the court consider whether there is evidence to establish a right of action apart from the limitation defence.
[65] An applicant for an extension of the limitation period bears a heavy evidentiary and persuasive onus on the application.[4]
"The benefit of any extension of the limitation period pursuant to the provisions of ss. 57 and 58 of the Act is conferred at the cost of a corresponding detriment to the potential defendant in the action. The legislative policy underlining the sections is plain enough. It is that the limitation period should be extended only in favour of a person who was, without fault on his part, unaware that he had a worthwhile cause of action until not more than twelve months before the commencement of proceedings. In that context, the reference in s. 58 to "any" of the material facts of a decisive character not being within the means of knowledge of the applicant should be construed as being to a fact or facts which would need to be within the means of knowledge of an applicant before it could be said that the facts within his means of knowledge constituted "material facts of a decisive character". Thus, if any one of facts A, B or C would, with other facts within the means of knowledge of the applicant, satisfy the requirements of "the material facts of a decisive character", it will not suffice, for the purpose of s. 58, that the applicant was unaware of fact A while being aware that he had a worthwhile cause of action in that he was aware of both facts B and C. In such a case, the applicant will only be, for the purposes of s. 58, unaware of "any" of the material facts of a decisive character if he was unaware of facts A, B and C, that is to say, if the facts which were within his means of knowledge were not, of themselves, such as to constitute material facts of a decisive character.
[62]
The material facts to which ss. 57 and 58 refer are the material facts "relating to the cause of action". They include, in the case of a cause of action based on negligence, "the fact of the occurrence of negligence ... on which the cause of action is founded", "the identity of the person against whom the cause of action lies", "the fact that the negligence ... causes personal injury", "the nature and extent of the personal injury so caused" and "the extent to which the personal injury is caused by the negligence" (s. 57(1)(b)). In other words, the "material facts relating to a cause of action" include all those facts which, in combination, constitute the cause of action and the resulting personal injury. Subject to an important qualification, one or more of the material facts of a decisive character will be shown not to have been within the means of knowledge of an applicant if it appears that an applicant did not have within his or her means of knowledge some fact or facts which, in the context of the facts within his or her means of knowledge, made the difference between his or her having and not having a worthwhile cause of action. The qualification is of critical importance in the present case."
[63]
[67] There is no dispute that it is the means of knowledge of the plaintiff himself which is relevant, and the question is whether he had taken all reasonable steps to find out the information before 2 July 2024 but it must be a question of fact in any given case.[5]
[68] It is necessary therefore to determine if and when there was at some earlier stage a set of facts known to the plaintiff which, if known to a reasonable person, properly advised, would have led that person to regard those facts as constituting a good cause of action against the defendants which the plaintiff ought, in their own interests, pursue by commencing an action.[6]
[69] Whether an applicant for an extension of time has taken all reasonable steps to find out a fact, can only be answered by reference to what can reasonably be expected from the actual person in the circumstances of the applicant. If the person has taken all the reasonable steps to find out the fact, and has not found it out, then the fact is not within the person's means of knowledge.[7]
[64]
[70] The three features identified by the plaintiff satisfy me that there ought to be an order for an extension of time in the plaintiff's favour.
[71] The first is related to the plaintiff's knowledge at the time of the accident. The plaintiff's Workplace Health and Safety Statement given on 29 August 2019, when read as a whole, is consistent with the plaintiff expressing the view that he worked for a business which was known as Assured Concreting Services. As his affidavit demonstrates, he wore a shirt bearing that name and drove a vehicle bearing that name. The company which in fact operated that business is not however the named second defendant. The second defendant is the plaintiff's actual employer, while Assured is the business' trading name. The misidentification of the business name in the Workplace Health and Safety statement, which error was not picked up by the plaintiff when he signed that statement, can be accepted as just that, an error in the context of a person who had, less than a week before, suffered a serious injury in a workplace accident.
[72] Nowhere in the plaintiff's statement to the Inspector does he give evidence that he knew or understood the subcontract arrangements that existed at the worksite. Indeed, the plaintiff's evidence was that he had no role in negotiating, reviewing, or executing contracts or subcontracts for work undertaken by Assured. In his affidavit the plaintiff deposed that he did not have access to, nor see, the signed subcontract in question before it was disclosed on 2 July 2024. He was not cross-examined on whether he had seen the earlier unsigned contract, or the tender review minutes at exhibit TAM-1.
[73] In those circumstances, the plaintiff can therefore be taken not to have had knowledge of the actual contractual arrangements at the time of his accident.
[74] The second issue relates to disclosure.
[75] I have already observed that no disclosure was made of the relevant signed subcontract during the pre-proceedings phase against either the PIPA respondent or the WorkCover respondent.
[76] Both respondents had obligations in the pre-proceedings process both under PIPA and WCRA.
[77] Pursuant to s 27 of PIPA, a respondent to a claim must give a claimant copies of documents in the respondent's possession that are "directly relevant to a matter in issue in the claim". In a claim where contractual arrangements between parties are in issue, it plainly covers the provision of such material and it was accepted by the parties before me, that no such signed contract was provided before 2 July 2024.
[65]
"I became aware that my solicitors had received an unsigned copy of a subcontract between Evans Built Pty Ltd and ACS Pty Ltd in about September 2023, but in the absence of a signed version, it could not be known whether that document was correct. Because I could not add much further to what I have stated, I left that issue to my solicitors to deal with. There was nothing else that I could do personally, nor was there any further information that I had that would resolve the confusion. I did not think the issue was overly controversial because I understood my employer's response to be consistent with my understanding, namely that it was my employer that was engaged by Evans Built Pty Ltd and that is how I came to be doing work at the site. I therefore assumed that the unsigned contract probably did not proceed and so was irrelevant."
[66]
[88] The respondent proceeds on the basis that paragraph 32 demonstrates that the plaintiff became aware of the existence of the unsigned contract in September 2023. That reading of the first sentence is, of course, open, but equally open is a construction of that sentence that ties his solicitors' receipt of the document to the date in September 2023, but is silent as to when the plaintiff became aware of those facts.
[89] I do not read paragraph 32 as Assured does. I read it as, the plaintiff became aware (on an unspecified date) that his solicitors had received the document in September 2023. That is because, earlier in the affidavit, the plaintiff deposed (at paragraph 28) that he gave instructions to his solicitors to file a statement of claim against his employer on 20 July 2023, and then an amended statement of claim against both Evans Built and his employer that was filed on 13 October 2023. He goes on to say (at paragraph 29):
[67]
"At the time of providing those instructions I was not aware of any question or controversy about whether my employer was working for Evans Built Pty Ltd directly when I was injured."
[68]
[90] That suggests to me that, at the time of the filing of the amended statement of claim on 13 October 2023, the plaintiff was not aware of the existence of the unsigned subcontract. Rather, his affidavit, read in context, then goes on to demonstrate (at paragraph 30) that in January 2024 he was asked to provide instructions about the contracting arrangements between Evans Built and his employer because both of those parties "seemed to be saying different things in documents they filed in court". His affidavit goes on that he "then came to learn" about the issues that had been raised in the respective defences. He deposes (at paragraph 31) that he found the issue confusing because it was always his understanding that his employer was responsible for doing the concreting part of the work under an arrangement with Evans Built. It is in the context of those preceding paragraphs, that the plaintiff's evidence at paragraph 32 that he "became aware" his solicitors had received an unsigned copy of the subcontract in about September 2023 suggests to me, that it was some unspecified time, but after January 2024, that he first became aware that his solicitors had received the unsigned copy of the subcontract in September 2023. The plaintiff was not cross-examined on the issue.
[91] Nevertheless, even if I am wrong in relation to that conclusion, and the paragraph should be read as Assured contends, I would not consider knowledge of the receipt of the unsigned subcontract between Evans Built and Assured in September 2023 to be a material fact of a decisive character for the purposes of s 31 of the LAA.
[92] Both the plaintiff and Assured pressed the court to have regard to the words in s 30(1)(b)(ii) of the LAA, that for the purposes of ss 31, 32, 33 and 34 of the LAA, material facts relating to a right of action are of a decisive character, but only if a reasonable person knowing those facts and having taken appropriate advice, on them would regard those facts as showing that the person whose means of knowledge is in question ought in the person's own interests and "taking the person's circumstances into account" to bring an action on the right of action.
[93] The respondent submits that the "person's" relevant circumstances in this case was that the plaintiff knew that an unsigned and undated contract had been produced in September 2023 which ought to have cast some doubt in the plaintiff's mind on the correct contractual arrangements, and, when accompanied by the pleading filed by Evans Built on 23 November 2023 denying the contractual relationship with the second defendant, the plaintiff's circumstances were such that he ought to have known at that time all the necessary facts relating to a right of action, of a decisive character , such that any application to extend the limitation period ought to have been brought within 12 months of September 2023, which it was not.
[69]
[106] In the circumstances, there ought to be orders in accordance with plaintiff's application as follows:
[70]
(a) The plaintiff is granted leave to include Assured Concreting Services Pty Ltd as a third defendant in the proceeding;
(b) The plaintiff is granted leave to amend the claim and statement of claim to reflect the inclusion of Assured Concreting Services Pty Ltd as the third defendant in the proceedings; and
(c) The limitation period applicable to the plaintiff's claim against Assured Concreting Services Pty Ltd for injuries sustained on 25 August 2019 be extended to a date 14 days after the order of the court.
[71]
[107] The plaintiff also sought directions in relation to compliance with Chapter 2, Part 1 and Part 3 of the PIPA in respect of the proceedings that will now be brought against Assured Concreting Services Pty Ltd. No party made submissions as to the form of those directions.
[108] The parties should confer as to the draft directions and, if agreement can be reached, a copy of those directions may be forwarded to my associate, and I will make the necessary directions in Chambers. If there is a dispute as to the directions, the matter can be brought back before me.
[109] The plaintiff having been successful on the application, it follows, in my view, that Assured ought to pay the plaintiff's costs of the application as agreed or failing agreement to be assessed on the standard basis. Nevertheless, costs were not argued before me. The parties should confer as to the appropriate costs order. If they can be agreed, a proposed draft order can be sent to my associate, and I will make the necessary order in Chambers. If there is a dispute as to the costs order, the matter can be brought back before me.
[8] See s 27 of PIPA, as the respondent's duty to provide copies of material in the respondent's possession that are directly relevant to a matter in issue in the claim and s 37 of PIPA requiring the exchange of material prior to compulsory conference.
[18] In that context, the minor error in the plaintiff's statement to the Workplace Health and Safety Inspector, that he was a site foreman employed by "Assured Concrete Services Pty Ltd", was just that - a minor error.
[19] On 16 September 2020, the plaintiff provided a PIPA Part 1 Notice of Claim to Evans Built. At paragraph five of that document, he described the name of his employer as "The Trustee for the Qld Tilt Panels Family Trust trading as Assured Concreting Services (Assured)", correctly identifying the name of his employer as it appeared in his taxation records.
[20] In answer to question nine of that form, he identified that he was employed by "Assured" as a foreman concreter (using the description of "Assured" to align with the name of his employer in answer to question five). He described that Evans Built was the named contractor on the site.
[21] Evans Built, as the PIPA respondent, did not give a Notice of Contribution to any other party (PIPA, s 16).
[22] On 4 January 2022, the plaintiff gave a Notice of Claim for damages in accordance with the provisions of the Workers Compensation and Rehabilitation Act2003 (Qld) (WCRA) to WorkCover, identifying in answer to question 36, the trading name of his employer as "The Trustee for the Qld Tilt Panels Family Trust t/as Assured Concrete Services (ABN 29 470 806 062)". He identified in answer to question 60, that he had also given notice to another party against whom he alleged negligence, and he identified that party as Evans Built Pty Ltd.
[23] On 20 January 2022, solicitors appointed on behalf of WorkCover confirmed that the Notice of Claim for damages was compliant. That letter identified Workcover's insured as "QLD Tilt Panels Pty Ltd". Three weeks later, on 14 February 2022 the solicitors for WorkCover provided a Notice of Contribution to Evans Built.
[24] On 19 July 2022, the solicitors on behalf of WorkCover denied liability for the plaintiff's injuries, asserting that the employer did not breach its duty of care, the employer provided a safe system of work, and enumerated a list of reasons why the employer was not responsible for the trench collapse. In particular, the solicitors on behalf of WorkCover asserted that the employer was not the principal contractor or occupier of the site but rather that the site was under the control of Evans Built. It asserted that the employer could not have known, for example, of the works which were being undertaken on the site but that the principal contractor, Evans Built, should have known of the presence of the water pipe in the vicinity of the trench, which it is alleged caused the trench's collapse. In setting out its detailed reasons for its denial of the plaintiff's claim, it mentioned nothing of the proposed defendant Assured and gave no contribution notice to Assured.
[25] On 24 March 2023, solicitors on behalf of Evans Built responded to the claim against that company pursuant to s 20 of PIPA. In doing so, they denied liability in respect of the claim and gave notice that contributory negligence of 100 per cent was claimed against the plaintiff. Evans Built did not identify the negligence of the plaintiff's employer, or any other party. Specifically, Evans Built did not identify the current respondent, Assured, as a contributor.
[26] As the primary limitation period was expiring, and the pre-court procedures had not finished against either respondent, the plaintiff obtained leave to commence proceedings against Evans Built, which proceedings were stayed pending compliance with the balance of the pre-court procedures pursuant to PIPA. That statement of claim was filed on 19 August 2022, just days before the expiration of the limitation period.
[27] Separate proceedings against the employer were filed on 20 July 2023. Because the two separate proceedings involved the same or substantially the same questions of fact, ultimately those proceedings were consolidated by an order of 3 October 2023.
[28] Once the proceedings were consolidated an amended statement of claim was filed on 13 October 2023. I will return to that pleading shortly.
[78] Similar provisions exist under the WCRA. Section 279 requires the parties to co-operate in relation to a claim by giving each other copies of relevant documents within 21 days of the claimant giving the insurer a Notice of Claim.
[79] Next, before parties attend a compulsory conference, s 37 of PIPA requires that each party must give each other party copies of all documents not yet given to the other party that are required to be given under the Act. Section 37(1)(b) requires that a statement signed by the party verifying that all relevant documents in the possession of the party, or their legal representatives, have been provided. By s 37(2) the parties must sign a certificate of readiness stating that, having regard to the documents in the party's possession, the party is in all respects ready for the conference and amongst other things, the party has fully complied with the party's obligations to give the other parties the material required to be given under the Act.
[80] Again, similar provisions exist under the WCRA at s 290A.
[81] What follows from these provisions, is that the plaintiff here, acting reasonably and in his own interests, can fairly conclude that all relevant documents in a party's possession have been disclosed during the pre-court processes, and certainly prior to the completion of the compulsory conference. There was therefore no reason for the plaintiff, or his legal advisors, to suppose that there was other relevant subcontractual documentation that had not been provided to him. The fact that no contributor's notice had been given to a subcontractual party would have reinforced that reasonably formed view.
[82] While it is not necessary to blame the existing then respondents for the failure to provide the documentation, relevantly for the purposes of this inquiry, it informs the question of the reasonableness of the plaintiff's own conduct, and that of his advisors.
[83] To the extent that there was disclosure of an unsigned version of the subcontract which was provided in September 2023, it was in fact unsigned and expressly recorded that it was documentation "prior to any contract being formalised". Given that no copy of the signed contract had been produced by either respondent during the course of the pre-proceedings process, at the time of receiving the unsigned contract in September 2023, some four years after the accident had occurred, it was a fair assumption that there was no such signed contract in respect of the works which were being carried out.
[84] Counsel for the plaintiff therefore submitted that the timing and context of the unsigned contract disclosure are important. By that time (September 2023), Evans Built had not joined Assured as a party, nor had it identified Assured as a potential contributor under s 14 of PIPA. Disclosure under PIPA had been completed, and Evans Built had not provided a copy of a signed or unsigned contract during the PIPA disclosure process.
[85] The statement of claim in the proceedings against Evans Built had been filed on 19 August 2022 and that statement of claim alleged a subcontract between Evans Built and Qld Tilt Panels. Evans Built was not required to file a defence at that stage given that the proceedings were stayed pursuant to s 43 of PIPA. The statement of claim pleaded (at paragraph 4) that the plaintiff was employed as a foreman concreter by the Trustee for the Qld Tilt Panels Family Trust trading as Assured Concreting Services which was responsible for performance of part of the contract work "under subcontract with the defendant". Evans Built knew that the contractual arrangements between the principal and the plaintiff's employer were a critical element of the plaintiff's case, but still did not produce any signed contract in accordance with its disclosure obligations at that time.
[86] Furthermore, in terms of context, the compulsory conference in respect of both claims was held on 2 June 2023, and still no copy of any signed or unsigned contract had been produced. It does therefore seem to me a compelling argument that in the context of the pre-litigation disclosure and the commencement of the proceedings against Evans Built in August 2022, the failure to produce either a signed or unsigned contract was material to the plaintiff's state of knowledge.[8]
[87] Against this, the respondent contends that the plaintiff became aware of the existence of the unsigned contract in September 2023. It relies upon paragraph 32 of the plaintiff's affidavit which reads as follows:
[94] I do not accept that that this combination of features means the plaintiff had knowledge of the material facts of decisive character relating to his right of action at any time prior to 2 July 2024. Prior to that date, the plaintiff knew that there was an unsigned and undated contract which had apparently not been finalised. That "contract" was between Evans Built and Assured, but the work which was being carried out was being carried out by the plaintiff and his fellow employees.
[95] The plaintiff also knew that he had given a WCRA notice to his employer, which notice was compliant. No contributor had been identified by the first or second respondent in the pre-proceedings phase to be joined to his proceedings. Solicitors acting on behalf of the then PIPA respondent and then WorkCover respondent had not produced a signed contract at any time in the pre-proceedings phase. His own employer had then admitted the sub contractual arrangements on the pleadings, including, that the second defendant was conducting a concreting business under the name "Assured Concreting Services", and that it was the second defendant who was responsible for the performance of part of the construction work "under a subcontract with the First Defendant" (see paragraphs [44] and [45] above).
[96] A person in that circumstance, with the knowledge which the plaintiff had, would not in my view have done anything differently to that which was done by the plaintiff and his solicitors. The fact that an unsigned contract had been disclosed in September 2023 would not have been a material fact of a decisive character in the face of those other known facts.
[97] That brings me to the third issue raised on behalf of the plaintiff and that is in relation to the pleadings which I have already set out above.
[98] The plaintiff pleaded in the combined amended statement of claim that there was a subcontractual arrangement between the first and second defendants, and the plaintiff's employer admitted the subcontractual arrangement with the first defendant. Had there been any concern about the subcontractual arrangements at that time, that admission, by the plaintiff's employer, would have reinforced to the plaintiff, and his legal advisors, that the plaintiff had correctly joined the necessary parties to the proceedings.
[99] It was only upon receiving the first defendant's defence to the amended statement of claim which then denied the subcontractual arrangements with the second defendant that the issue was, on the face of the pleadings, then unresolved. In my view, the plaintiff's conduct thereafter was perfectly reasonable in the circumstances. The plaintiff's solicitors immediately called for the disclosure of any necessary documents in relation to the conflict which had arisen on the pleadings. It was only by the production of the signed subcontract, in fact dated April 2019 but not disclosed until 2 July 2024, that the plaintiff finally became possessed of all the material facts of a decisive character not previously within his knowledge or means of knowledge. He quickly did all things reasonable, necessary and appropriate by the bringing of this application in January 2025. Only as at 2 July 2024 did the plaintiff have the necessary accumulation of facts such that it was within his knowledge, or means of knowledge, that there may be another party who he ought, in his own interests, join to the proceedings. The signed subcontract provided newly discovered facts, of a decisive character, with a prospect of establishing liability against that respondent.[9]
[100] Knowledge of the fact did at least three things. First, it established that the proposed respondent in fact had subcontractual responsibilities at the worksite. Second, it demonstrated there was a real prospect that the second defendant's admissions on the pleadings, that it was responsible for performing part of the construction work under the subcontract under the name "Assured Concreting Services" was incorrect. And third (as a combination of the preceding two things), that some other party was arguably the party who was negligent and/or in breach of contractual obligations at the worksite.
[101] The existence of the signed contract was a material fact of which the plaintiff was unaware, and I find that material fact to be of a decisive character. Without it, the plaintiff, even having taken appropriate advice, would not have regarded the facts known by him as showing that a proceeding against that respondent would have a reasonable prospect of resulting an award of damages sufficient to justify the bringing of that action. That was the approach adopted by Boddice J (as his Honour then was) in Anderson v Gofish Pty Ltd & Ors[10] and I propose to follow that approach.
[102] I further conclude that the fact was not within his means of knowledge at an earlier time. There is no evidence to suggest the fact was able to be found by him earlier. I refer to, without repeating the disclosure issues in the pre-court procedures and the state of the pleadings referred to above
[103] I therefore find that the material fact of a decisive character was not within the plaintiff's means of knowledge before 2 July 2024.
[104] Accordingly, the plaintiff has established that a material fact of a decisive character relating to the right of action was not within his means of knowledge until a date after the commencement of the year last preceding the expiration of the period of limitation for the action. The plaintiff has also established that there is evidence of a right of action apart from a defence founded upon the expiration of a period of limitation, and Assured did not assert otherwise.
[105] There are no discretionary reasons to refuse the relief. Mr Chabau and his wife are or were the directors of both the second defendant and the proposed defendant. They have had knowledge of the proceedings since commencement. No argument of prejudice in raised.