Palace v RCR O'Donnell Griffin Pty Ltd [2020] QSC 354 | Case summary

What happened

In Palace v RCR O’Donnell Griffin Pty Ltd (in liq) [2020] QSC 354, Martin J considered an application arising from an alleged workplace injury and a proposed claim against a company in voluntary liquidation. Palace sought permission to add RCR O’Donnell Griffin as a respondent under the Personal Injuries Proceeding Act 2002 (Qld) (PIPA), and permission under s 500(2) of the Corporations Act 2001 (Cth) to proceed against the company.

Palace alleged that he was injured on 13 February 2018 at a solar farm in North Queensland. He worked for Mass Solutions WA Pty Ltd, a labour-hire employer that had placed him with RCR O’Donnell Griffin as host employer ([13]–[14]). The alleged injuries included heatstroke and injuries said to have occurred when co-workers assisted him and transported him to hospital. The more detailed account of that transport came from Palace’s history recorded in an orthopaedic report, rather than from a detailed first-hand affidavit account ([18]–[23]).

The PIPA notice period expired on 13 November 2018. Palace initially believed another company was the host employer and served a notice on that company and WorkCover Queensland. The court recorded that the correct respondent was later identified and that notices were served in January and February 2020, about 15 months after the relevant notice period had expired ([15]–[16], [24], [29]–[31]). The respondent did not agree to being added, so Palace required the court’s leave under s 14(2) PIPA ([25]–[26]).

The company was in voluntary liquidation. A liquidator had been appointed on 26 March 2019 ([42]). Palace therefore also required leave under s 500(2) of the Corporations Act to proceed against it.

There was a preliminary dispute about evidence. Palace sought leave to file and read a further affidavit from solicitor Cale Fryer. The affidavit exhibited Townsville Hospital and WorkCover records, as well as a medico-legal report, and the respondent objected that it was “entirely hearsay” ([3]). Martin J permitted the affidavit because the application did not finally determine the parties’ ultimate dispute about liability ([11]–[12]). That evidentiary ruling did not resolve whether the injuries were caused by the respondent.

The orders reflect the distinction: the further affidavit was admitted, but the substantive application was dismissed.

Why the court decided this way

The application involved different statutory questions, and the court addressed them separately.

First, UCPR r 430(2) allows an affidavit for an application for relief other than final relief to include information-and-belief statements if the deponent identifies the sources of the information and the grounds for the belief ([4]). The issue was whether this application sought final relief. Martin J adopted the test discussed in Ex parte Britt and Gallagher v Boylan: the question is whether granting the application would finally dispose of the parties’ rights in their ultimate dispute, not merely whether it would resolve the particular application ([6]–[10]).

The ultimate dispute was whether RCR O’Donnell Griffin was liable for Palace’s injuries. Granting or refusing leave would not decide that issue. The judge noted that if leave were refused, the claim could be dealt with through the liquidator in the ordinary course of dealing with creditors ([11]). The affidavit was therefore allowed to be filed and read ([12]). The ruling concerned the procedure for receiving evidence at this application, not the truth or ultimate admissibility of every statement for a later trial.

Second, PIPA s 14(2) required the court to decide whether to permit the respondent to be added after time expired. Martin J relied on Interpacific Resorts and Bridgeport, identifying four relevant considerations: prejudice, the explanation for delay, the merits at a reasonably superficial level, and the utility of the proposed course ([27]–[28]).

The delay weighed against leave. Palace’s notification of the correct respondent came about 15 months after the relevant period, and the judgment records no explanation for the delay ([29]–[30]). The error arose from a mistaken belief about which company was responsible, but the available material did not show steps taken to verify that belief. The judge concluded that the delay resulted from an omission to make fundamental enquiries, rather than a conscientious effort to comply with PIPA ([31], [37]). The court also recognised that delay can cause relevant evidence to be lost and can be oppressive to defendants, drawing on Brisbane South Regional Health Authority v Taylor ([33]–[34]).

The merits evidence was another difficulty. Hospital records supported a diagnosis of heatstroke, but the court found no material showing that it had effects beyond a few days after the incident ([19]). By contrast, the claimed knee and ankle injuries were said to have occurred during transport and assistance by co-workers. The evidence did not identify those co-workers, their employer, who arranged the transport, or in sufficient detail how the falls occurred ([21]–[23]). Martin J said the material did not show, even at a reasonably superficial level, that the knee and ankle injuries could be attributed to the respondent ([38]). The judge was prepared, for the purposes of the application, to proceed on the basis that the heatstroke resulted from a breach of the respondent’s duty to provide a safe work environment. But the material did not connect the respondent to the transport-related injuries, and the application did not address foreseeability or remoteness ([39]).

Utility also counted against leave. The respondent’s insurance appeared to respond to a properly formulated claim but carried a $100,000 deductible. If the claim could be established only in respect of heatstroke, the judge considered there was no prospect that damages would exceed that deductible. The judge therefore questioned the point of granting leave and referred to pursuing the claim by proof of debt ([41]).

Finally, s 500(2) restricted proceedings against a company after a resolution for voluntary winding up, unless the court granted leave ([43]). Martin J referred to the considerations summarised in QNI Resources, including the claim’s merits, the ordinary proof-of-debt process, prejudice to creditors, complexity and whether proceedings would be useful ([45]). Insurance can be a relevant reason to permit proceedings, as recognised in Oceanic Life, but it did not overcome the shortcomings in the claim as presented ([46]–[48]). The judge concluded that Palace had not shown a serious question to be tried about the knee and ankle injuries, a complexity-based reason for leave, or a claim whose apparent damages exceeded the deductible ([47]).

Before and after state of the law

This judgment did not purport to create a new general test for late joinder under PIPA or for leave to proceed against a company in liquidation. It applied existing approaches identified in earlier Queensland decisions and other authorities.

For affidavit evidence, the judgment applied the established finality inquiry associated with Ex parte Britt and Gallagher v Boylan. The relevant question is whether the application, if granted, would finally resolve the parties’ ultimate dispute. Martin J applied that approach to conclude that the affidavit could be read in this leave application, because the question of liability remained unresolved whatever the result ([6]–[12]).

For PIPA leave, the judgment used the four considerations drawn from Bridgeport: prejudice, explanation for delay, a reasonably superficial assessment of merits, and utility ([27]–[28]). It also treated the relationship between delay and the claimant’s efforts to comply with the statutory process as relevant, referring to Winters v Doyle ([35]–[37]). The judgment illustrates the practical importance of substantiating the explanation for late notice and providing material that links the proposed respondent to the alleged harm.

For liquidation leave, the decision applied the supervisory approach described in QNI Resources. Proceedings are not automatic simply because a claimant alleges a debt; the court considers whether there is a sufficient basis to depart from the proof-of-debt route and whether proceedings are justified in the circumstances ([45]–[48]). The judgment also recognises that insurance may support leave, but treats the deductible and the likely value of the claim as relevant to utility ([41], [46]–[47]).

The judgment does not state that its application altered these pre-existing approaches. Its contribution, on the text provided, is an example of how those considerations operated together on a record with late notification, sparse evidence about the alleged mechanism of injury, and insurance subject to a substantial deductible.

Key passages with plain-English translation

At [11], Martin J said: “Whether leave is granted or not, that will not dispose of that issue.” The “issue” was whether the respondent was liable for Palace’s injuries. In plain English, the leave application was not the trial of the underlying injury claim. That was why the affidavit question could be assessed as an application for relief other than final relief.

At [28], the judgment identifies “prejudice, explanation for delay, the merits of the case at a reasonably superficial level, and finally the utility of the course proposed.” This is a concise guide to the PIPA leave analysis in this case. It does not mean the court conducted a full trial of liability; the merits assessment was deliberately preliminary.

At [37], the judge said the delay resulted from “an omission to make fundamental enquiries.” The significance is that the mistaken identification of the responsible company was not, on the material before the court, accompanied by steps to check the identity of the host employer. The court contrasted this with a conscientious effort to comply with PIPA.

At [38], Martin J stated that the material “does not go far enough.” The next paragraphs explain why: the evidence did not sufficiently connect the respondent with the injuries allegedly sustained during transport and assistance by co-workers ([39]–[40]). This was a deficiency in the evidentiary foundation for leave, not a final determination that the respondent could not be liable.

At [41], the judge reasoned that if the only provable injury were heatstroke, there was “no point in granting leave” because the claim would not exceed the policy deductible. In plain English, the court considered that proceedings might have little practical value on the claim as then supported.

What fact patterns trigger this precedent

The judgment is relevant to applications involving a late attempt to add a respondent under PIPA, especially where the claimant initially identified the wrong entity and seeks to explain the delay. It shows that the explanation may be assessed by reference to what steps were taken to verify the respondent’s identity, and whether the delay arose despite a conscientious effort to comply with the statutory process ([31]–[37]).

It is also relevant where the proposed claim depends on sparse or indirect evidence connecting the respondent to the injury. The court distinguished the medical evidence about the extent of injury from evidence identifying how the respondent was legally connected to the event that caused it ([18]–[23], [38]–[40]). The decision therefore highlights the difference between proof that an injury occurred and evidence supporting a claim that a particular proposed respondent is responsible for it.

The judgment may also matter where a defendant company is in voluntary liquidation and the claimant seeks to pursue damages proceedings rather than rely on the proof-of-debt process. Relevant circumstances include the apparent merits, the usefulness of court proceedings, creditor prejudice, the existence and terms of insurance, and the relationship between the likely damages and any policy deductible ([41], [45]–[48]).

Finally, the affidavit ruling may be relevant where a party objects to hearsay in an application. The central question under the approach used here is whether the application would decide the ultimate rights in dispute, rather than whether the application itself is important or practically significant ([4]–[12]).

How later courts have treated it

The judgment is dated 30 November 2020. The supplied judgment contains no decisions after that date and provides no account of later judicial treatment of Palace. Accordingly, this source does not establish whether later courts have followed, distinguished or otherwise treated it.

Within Palace itself, Martin J applied or relied on earlier authorities. Ex parte Britt and Gallagher v Boylan informed the affidavit-finality test ([6]–[10]). Interpacific Resorts and Bridgeport supplied the considerations for PIPA leave ([27]–[28]). Brisbane South Regional Health Authority v Taylor informed the discussion of the purposes and effects of limitation periods ([33]–[34]). Winters v Doyle provided guidance concerning the relationship between delay and efforts to comply with a statutory notice regime ([35]–[37]). For liquidation leave, the judgment referred to the framework in QNI Resources and the relevance of insurance discussed in Oceanic Life ([45]–[46]).

Those relationships describe the use of earlier authorities by Martin J. They do not establish how any later court has treated Palace.

Still-open questions

The judgment expressly left open whether s 500 of the Corporations Act applies to the pre-trial procedures prescribed by PIPA. Martin J said it was unnecessary to decide that question and dealt with the s 500 arguments briefly in any event ([44]). The decision should therefore not be read as resolving that statutory interaction.

Nor did the court decide whether RCR O’Donnell Griffin was liable for Palace’s injuries. The application concerned permission to add and proceed against the company. The judge’s assumption, for the application, that the heatstroke was caused by a breach of duty was expressly limited to that purpose ([39]). The ultimate liability question remained undecided.

The judgment also does not decide the merits of a fully particularised claim supported by further evidence. Its assessment was based on the material then relied upon. It identified gaps concerning the co-workers, their employer, who arranged transport, the manner of the falls, and the link between the respondent and the later injuries ([21]–[23], [38]–[40]). It did not determine what additional evidence, if any, could address those gaps.

Finally, although the insurance deductible was important to the utility analysis, the judgment does not establish a general rule that claims below a deductible should not proceed. Its reasoning was tied to the claim as presented, the injuries the court considered supportable on that material, and the apparent insurance arrangements ([41], [47]).

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, get a qualified Australian lawyer to check it.

Catchwords

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS –PROCEDURAL ASPECTS OF EVIDENCE – AFFIDAVITS –where the applicantsought leave to file and read the further affidavit of Cale Fryer – wherethe affidavit exhibits medicalrecords and documents – where therespondent objected on the basis that the application was one seeking finalrelief and theaffidavit is “entirely hearsay” – where anaffidavit for use in an application for relief other than final reliefmaycontain statements based on information and belief if the statement-maker setsout the sources of the information and groundsfor the belief – whetherthe application is for “final relief” and whether the applicantshould be granted leaveto file and read the further affidavit of CaleFryerPROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS –JOINDER OF CAUSES OF ACTION AND OF PARTIES – PARTIES– GENERALLY– where the applicant alleges to have sustained injuries at work in 2018– where the time prescribedfor giving notice expired in November 2018– where the applicant erroneously served another company with a notice ofclaimfor damages under the Workers Compensation and Rehabilitation Act2003 in November 2019 – where the applicant later discovered that therespondent was the proper entity and served notices in Januaryand February 2020– where the applicant requires either the respondent’s consent orthe court’s leave to add therespondent to the proceedings under thePersonal Injuries Proceeding Act 2002 (“PIPA”) – wherethe respondent does not agree to being added to the proceeding – whetherthe applicantshould be granted leave to proceed under PIPACORPORATIONS – WINDING UP – CONDUCT AND INCIDENTS OF WINDING UP– PROCEEDINGS BY OR AGAINST THE COMPANY –LEAVE TO PROCEED –GENERALLY – where the respondent is in voluntary liquidation –whether the applicant shouldbe granted leave to proceed against the respondentunder s 500(2) of the Corporations Act 2001Corporations Act 2001, s 500Motor Accident Insurance Act1994Personal Injuries Proceeding Act 2002, s 14Rules of theSupreme Court, O 41 r 3(1)Uniform Civil Procedure Rules 1999,s 430Bridgeport Pty Ltd v Yelyruss Pty Ltd (in liq) [2011] QSC 237,appliedBrisbane South Regional Health Authority v Taylor [1996] HCA 25(1996) 186CLR 541, appliedDoran Constructions Pty Ltd v Beresfield Aluminium PtyLtd [1999] NSWSC 499, citedEx parte Britt [1987] 1 Qd R221, appliedGallagher v Boylan [2012] QCA 159[2013] 1 Qd R 204,appliedInterpacific Resorts (Australia) Pty Ltd v Austar EntertainmentPty Ltd [2004] QSC 427[2005] 2 Qd R 23, appliedLa Trobe Wholesale Finance Pty Ltd vKCRAM Pty Ltd (in liq)(No 1) [2012] FCA 1388, citedOceanic Life vInsurance and Retirement Services Pty Ltd (in liq) (1993) 11 ACSR 516,citedWinters v Doyle [2006] QCA 110[2006] 2 Qd R 285, cited

Judgment (92 paragraphs)

[1]

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PROCEDURAL ASPECTS OF EVIDENCE - AFFIDAVITS - where the applicant sought leave to file and read the further affidavit of Cale Fryer - where the affidavit exhibits medical records and documents - where the respondent objected on the basis that the application was one seeking final relief and the affidavit is "entirely hearsay" - where an affidavit for use in an application for relief other than final relief may contain statements based on information and belief if the statement-maker sets out the sources of the information and grounds for the belief - whether the application is for "final relief" and whether the applicant should be granted leave to file and read the further affidavit of Cale Fryer

[2]

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JOINDER OF CAUSES OF ACTION AND OF PARTIES - PARTIES - GENERALLY - where the applicant alleges to have sustained injuries at work in 2018 - where the time prescribed for giving notice expired in November 2018 - where the applicant erroneously served another company with a notice of claim for damages under the Workers Compensation and Rehabilitation Act 2003 in November 2019 - where the applicant later discovered that the respondent was the proper entity and served notices in January and February 2020 - where the applicant requires either the respondent's consent or the court's leave to add the respondent to the proceedings under the Personal Injuries Proceeding Act 2002 ("PIPA") - where the respondent does not agree to being added to the proceeding - whether the applicant should be granted leave to proceed under PIPA

[3]

CORPORATIONS - WINDING UP - CONDUCT AND INCIDENTS OF WINDING UP - PROCEEDINGS BY OR AGAINST THE COMPANY - LEAVE TO PROCEED - GENERALLY - where the respondent is in voluntary liquidation - whether the applicant should be granted leave to proceed against the respondent under s 500(2) of the Corporations Act 2001

[4]

Corporations Act 2001, s 500

[5]

Motor Accident Insurance Act 1994

[6]

Uniform Civil Procedure Rules 1999, s 430

[7]

Bridgeport Pty Ltd v Yelyruss Pty Ltd (in liq) [2011] QSC 237, applied

[8]

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, applied

[9]

Doran Constructions Pty Ltd v Beresfield Aluminium Pty Ltd [1999] NSWSC 499, cited

[10]

Ex parte Britt [1987] 1 Qd R 221, applied

[11]

Gallagher v Boylan [2012] QCA 159; [2013] 1 Qd R 204, applied

[12]

Interpacific Resorts (Australia) Pty Ltd v Austar Entertainment Pty Ltd [2004] QSC 427; [2005] 2 Qd R 23, applied

[13]

La Trobe Wholesale Finance Pty Ltd v KCRAM Pty Ltd (in liq)(No 1) [2012] FCA 1388, cited

[14]

Oceanic Life v Insurance and Retirement Services Pty Ltd (in liq) (1993) 11 ACSR 516, cited

[15]

Winters v Doyle [2006] QCA 110; [2006] 2 Qd R 285, cited

[16]

[1] The applicant seeks leave under s 500(2) of the Corporations Act 2001 (Cth) ("Corporations Act") to proceed against the respondent for a claim for personal injuries alleged to have been sustained on 13 February 2018. For reasons which will become apparent, the applicant also needs leave under s 14 of the Personal Injuries Proceeding Act 2002 ("PIPA") to join the respondent for the purposes of that Act.

[17]

Preliminary point - the admissibility of a "hearsay affidavit"

[18]

[2] When this matter came on for hearing, Mr Cormack read his material. It included two affidavits by Cale Fryer of his instructing solicitors. The longer of those affidavits contains a significant amount of hearsay, particularly with respect to what Mr Fryer says he was told by the applicant about the circumstances of the injury said to have occurred. No objection was taken to Mr Cormack reading that affidavit.
[3] Mr Cormack also sought leave to file and read a further affidavit of Mr Fryer. Mr Hackett objected to that on the basis that this was "an application brought by originating application seeking final relief and the affidavit is entirely hearsay, exhibiting documents from other people." That is an accurate description of the affidavit. It exhibits documents from the Townsville Hospital, WorkCover Queensland and a medico-legal report from Dr Mark Shaw, an orthopaedic surgeon. After some argument, I told the parties that I would hear the application and decide the issue of admissibility together with the principal relief sought.
[4] Although it was not identified, I expect that Mr Hackett relied on r 430 of the Uniform Civil Procedure Rules 1999. Rule 430(2) provides that an affidavit "for use in an application because of default or otherwise for relief, other than final relief, may contain statements based on information and belief if the person making it states the sources of the information and the grounds for the belief."
[5] The predecessor rule in the Rules of the Supreme Court was O 41 r 3(1). It relevantly provided:

[19]

"Affidavits shall be confined to facts to which the deponent is able to depose of his or her own knowledge, except in the cases specially provided for by these rules, and except in the case of affidavits used on interlocutory motions or applications, in which statements as to the belief of the deponent, giving the sources of the deponent's information and the grounds of his or her belief, may be admitted."

[20]

[6] In Ex parte Britt,[1] the applicant was seeking an order extending the time within which to make a claim against the Nominal Defendant. The Nominal Defendant objected to the reception of an affidavit in which the bulk of evidence relating to liability was deposed to by way of information and belief by an investigator. McPherson J had to determine whether the application was final rather than interlocutory. His Honour considered a number of decisions of the High Court of Australia and concluded:

[21]

"Those cases were, it is true, all decisions that raised the question whether a particular decision was final, or merely interlocutory, for the purpose of prosecuting an appeal against it as of right. The present instance is different because the order sought has not yet been made or refused. Nevertheless in Hall v. Nominal Defendant it is clear, at least from the reasoning of Windeyer J. ..., that the question is to be determined independently of the outcome of the application. Any other conclusion would be impracticable. It would be impossible, until the result of the application was known to say whether the application was final or interlocutory, and therefore impossible to decide whether or not hearsay evidence was admissible for the purpose of that determination."[2] (citation omitted)

[22]

"... whether the decision of the application will finally dispose of the rights of the parties, not merely as to the subject-matter of the particular application in question but also as to the ultimate dispute between the parties, irrespective of whether it is already the subject of litigation, and independently of whether the outcome of the application may, in a practical sense, spell an end to all prospect of initiating such litigation."[3]

[23]

[8] McPherson J held that the application would not finally dispose of the rights of the parties. The plaintiff's failure to give the appropriate notice would stand as a defence should the Nominal Defendant raise it.
[9] In Gallagher v Boylan,[4] Fraser JA, after considering the decision in Ex parte Britt contrasted the former rule which applied to the circumstances with r 430(2) and said:

[24]

"[15] ... I would state the applicable test as being that hearsay evidence is not made admissible by r 430 if the grant of the relief claimed in the application would finally dispose of the rights of the parties as to the ultimate dispute between the parties, rather than merely as to the subject matter of the application itself."

[25]

[10] In that case, the application was construed as seeking "final relief" because the proposed orders sought were to dismiss the appeal and give judgment in favour of the appellant. If that were to occur, it would resolve the ultimate dispute as to the parties' rights.
[11] The ultimate issue between the parties in this case is whether or not the respondent was liable for the injuries suffered by the applicant. Whether leave is granted or not, that will not dispose of that issue. If leave is not granted, then the issue can be agitated in another way with the liquidator in the ordinary course of dealing with the respondent's creditors.
[12] I will give leave to the applicant to file and read the further affidavit of Cale Fryer.

[26]

[13] The applicant alleges that he was injured at work on 13 February 2018. He was working at a solar farm in North Queensland and claims that he suffered heatstroke and further injuries when he was being treated and transported by "co-workers".
[14] The applicant was employed by Mass Solutions WA Pty Ltd. It was a "labour hire" employer who placed the applicant with the respondent. In those circumstances an entity in the position of the respondent is commonly known as the "host employer".
[15] For reasons which were not explained, the applicant apparently believed that another company was the host employer and a notice of claim for damages under the Workers Compensation and Rehabilitation Act 2003 was served on the other company and on WorkCover Queensland.
[16] The applicant discovered that the respondent was the proper entity and notices were served in January and February this year. That was outside the time limit provided for in PIPA.
[17] The evidence which the applicant relies upon is contained in the hearsay affidavits of Mr Fryer who relates, with little detail, the events said to have occurred on 13 February 2018.
[18] The only detailed account of what is alleged to have occurred is contained in the report of Dr Mark Shaw, an orthopaedic surgeon, who examined the applicant on 15 November 2019. He summarises the information given to him by the applicant in this way:

[27]

"At the time of the injury, he was employed as an electrician at Sun Metal Solar Facility outside Townsville. It was his first shift. He was working in hot temperatures and developed heat stroke. He developed difficulty sitting, standing and walking, and required physical assistance by co-workers. He was transported to Townsville Hospital but became nauseated during transit. The car was stopped and he opened the door and leant out to vomit. He fell out of the car, landing on his hands and knees. He did not have the strength to stand and his seatbelt had not been applied. His co-workers tried to get him back into the car. He was dropped on his knees several times before he was seated and continued transit to Townsville Hospital.

[28]

As a result of falling out of the car, and subsequent falls during the assisted attempts to get back into the car, Mr Palace sustained the following injuries:

[29]

Anterior right knee injury with medial meniscal tear;
Anterior left knee injury;

[30]

[19] The Townsville Hospital records show a diagnosis of "heatstroke". He was discharged the same day and the recommendation was for "judicious fluid intake for future work shifts". There is no material to support a claim that the heatstroke suffered by the applicant had any effect on him beyond a few days after the incident.
[20] The applicant's solicitors have prepared a document entitled "Heads of Damage/Offer of Settlement". In it there is a reference to the injuries allegedly suffered - they comprise injuries to his right knee, left knee and right ankle. There is also a reference to heatstroke. The balance of the document relates solely to the injuries received to his knees and ankle. Apart from a reference to heatstroke in the claim for general damages there is no claim for any continuing or past loss for heatstroke.
[21] The evidence concerning the cause of the damage to the applicant's knees and ankle is very vague. Mr Fryer confines his evidence to the statement: "The Applicant instructs further injuries were sustained when being treated and transported by co-workers."
[22] There is no evidence about:

[31]

(b) the identity of the employer of the "co-workers", or

[32]

[33]

[23] There is little evidence about the manner in which the applicant fell and how he suffered the injuries to his knees and ankle.

[34]

Section 14 - PIPA - joining a respondent

[35]

[24] Section 9 of PIPA provides that a notice of claim must be given within a specified period. In this case the time prescribed for the giving of such a notice expired on 13 November 2018. The applicant purported to give a notice to the respondent on 25 November 2019.
[25] Section 14(1) of PIPA provides that a claimant may add someone as a respondent by giving notice within a particular time. Section 14(2) provides:

[36]

"(2) If the time prescribed under subsection (1) for adding a respondent has ended, the claimant may add someone else as a respondent only with the person's agreement and the agreement of the parties or with the court's leave."

[37]

[26] The respondent does not agree to it being added and so the applicant needs the leave of the court.
[27] The factors which should be taken into account on an application for leave were discussed by Fryberg J in Interpacific Resorts (Australia) Pty Ltd v Austar Entertainment Pty Ltd[5] and Bridgeport Pty Ltd v Yelyruss Pty Ltd (in liq).[6] In both cases his Honour considered s 16(2) of PIPA but that section is relevantly indistinguishable from s 14(2).
[28] In Bridgeport, his Honour said that attention should focus on: "prejudice, explanation for delay, the merits of the case at a reasonably superficial level, and finally the utility of the course proposed."[7]

[38]

[29] The respondent relies on a number of matters to demonstrate that it will be prejudiced if leave is granted:

[39]

(a) The respondent has no record of the incident involving the applicant.

[40]

(b) The delay in notifying the respondent was about 15 months.

[41]

(c) The applicant's material is deficient in that it does not identify the "co-workers" and, thus, the respondent cannot make enquiries about the status of those co-workers.

[42]

[30] There was a delay in notifying the respondent of about 15 months. There is no explanation for this delay.
[31] Mr Fryer deposes to the applicant having instructed him that "to his knowledge" the worksite was under the control of RCR Tomlinson Ltd. It appears that no steps were taken to confirm that and notices were given to that company. It was not until January 2020 that Mr Fryer was told by the solicitors acting for WorkCover that the correct PIPA respondent might have been RCR O'Donnell Griffith.
[32] In the context of PIPA, this is a substantial delay but one which might be overcome in appropriate circumstances.
[33] The respondent submits that the delay puts it in a position similar to that of the defendant in Brisbane South Regional Health Authority v Taylor[8] where McHugh J identified four reasons for the enactment of limitation periods:[9]

[43]

(a) as time goes by, relevant evidence is likely to be lost,

[44]

(b) it can be oppressive to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed,

[45]

(c) people should be able to arrange their affairs and use the resources on the basis that claims can no longer be made, and

[46]

(d) insurers, and similar institutions, have a significant interest in knowing that they have no liability beyond a definite point.

[47]

[34] That list of factors is also relevant to the consideration of delay where leave is necessary to continue or commence proceedings.
[35] The respondent also relies upon the remarks of Keane JA in Winters v Doyle.[10] That case concerned an application made, pursuant to s 57(2)(b) of the Motor Accident Insurance Act 1994 ("the MAI Act"), for an extension of time within which to commence proceedings for damages against the respondents as a result of personal injuries suffered by the plaintiff in a motor vehicle accident. That provision is sufficiently similar to s 14 of PIPA for that decision to provide guidance in this case.
[36] In considering the principles which should be applied, Keane JA said:[11]

[48]

"It can be seen that each member of this Court in Morrison-Gardiner v. Car Choice Pty Ltd identified, as a consideration of central relevance to the proper exercise of the discretion conferred by s. 57(2)(b) of the MAI Act, the relationship between the delay which has occasioned the need to seek relief from the operation of the statutory time bar and the plaintiff's attempts to comply with the requirements of the MAI Act. A plaintiff will usually be able to show good reason for the favourable exercise of the discretion conferred by s. 57(2)(b) only if he or she can show that the delay which occurred was occasioned by a 'conscientious effort to comply' with the MAI Act." (emphasis added)

[49]

[37] The error in identifying the appropriate respondent was brought about by the misunderstanding of the applicant as to who was the relevantly responsible entity. On the material before me, no effort was made to confirm those instructions. In circumstances where there was a host employer that should have been one of the first steps taken. The applicant has not shown that the delay was occasioned by a conscientious effort to comply with PIPA, rather, the delay was occasioned by an omission to make fundamental enquiries.

[50]

[38] The material relied upon by the applicant does not go far enough. It does not demonstrate, even at a reasonably superficial level, that the injuries caused to the applicant's knee and ankles can be sheeted home to the respondent.
[39] I am, for the purposes of this application, content to proceed on the basis that the heatstroke suffered by the applicant was caused by the breach of duty of the respondent in not providing a safe work environment. But, there is nothing to link the respondent to the injuries caused when he was transported to hospital. The issues of foreseeability and remoteness are not dealt with by the applicant. In cases of this nature, an applicant is well advised to provide a draft statement of claim which illuminates the basis upon which it is said that the respondent is liable. That has not occurred in this case and no argument was directed towards that by the applicant.
[40] While there is medical evidence about the extent of the injury to the applicant, all that there is with respect to the connection between the respondent and those injuries is a view expressed by Mr Fryer that there were reasonable prospects of success in a claim for personal injury. In providing that view, Mr Fryer did not identify the factors upon which he reached that conclusion.

[51]

[41] The insurance held by the respondent which, it appears, would respond to a properly formulated claim of this nature, is subject to a deductible of $100,000. If the applicant's claim against the respondent can only be proved with respect to the heatstroke injury then there is no prospect that the deductible would be exceeded by any award of damages. In those circumstances, there would be no point in granting leave and the applicant should pursue his claim by way of a proof of debt.

[52]

Section 500 - Corporations Act

[53]

[42] The respondent is in voluntary liquidation. The liquidator was appointed on 26 March 2019 pursuant to s 439C(c) of the Corporations Act.
[43] The relevant part of s 500 provides:

[54]

"(2) After the passing of the resolution for voluntary winding up, no action or other civil proceeding is to be proceeded with or commenced against the company except by leave of the Court and subject to such terms as the Court imposes."

[55]

[44] Given my decision above, it is strictly unnecessary to consider this part of the application. And it is unnecessary to consider whether s 500 applies to the pre-trial procedures prescribed by PIPA. But, given the arguments which were advanced, I will deal with it briefly.
[45] The factors which should be taken into account have been conveniently summarised by Bond J in QNI Resources Pty Ltd & Ors v Queensland Nickel Pty Ltd (in liq)[12]:

[56]

"[45] [Section 500] and other cognate sections have been construed as conferring on the Court a supervisory jurisdiction. In deciding such applications the Court is concerned to protect companies in liquidation from being harassed by unnecessary litigation. The Court is also concerned to assist in the orderly administration of companies in liquidation by requiring claimants to adopt the ordinary procedure of lodging a proof of debt for their claims unless the claimants can demonstrate that there is some good reason why a departure from that procedure is justified in the case of the particular claims concerned. (See the discussion by Refshauge J in Commonwealth of Australia v Davis Samuel Pty Ltd (No 5) (2008) 68 ACSR 336; 164 ACTR 1; [2008] ACTSC 124 (Davis Samuel) at [5]-[18].)

[57]

[46] The Court has a discretion, which, whilst absolute, must nevertheless be exercised with judicial detachment and fairness: Davis Samuel at [19].

[58]

[47] For present purposes, it suffices to make four points.

[59]

[48] First, the applicants must show that the case they wish to progress has sufficient merit to warrant the grant of leave. What is required here was discussed by Refshauge J in Davis Samuel at [21]-[29]. The applicants do not have to demonstrate a prima facie case in the technical sense of the term. However they must demonstrate a serious question to be tried as to their entitlement to the relief they claim. They need not prove every element of the claim they wish to make out, but mere assertion, which is not supported by a solid foundation, will not be sufficient.

[60]

[49] Second, the applicants should lodge a proof of debt and pursue their rights in this way, unless they can show some good reason to the contrary. Implications of this proposition include:

[61]

(a) the Court will normally grant leave as of right where applicants seeks to recover their own property from the company because such claims cannot be accommodated within the proof of debt regime (Davis Samuel at [34]-[35]); and

[62]

(b) there are many claims which can only be resolved by court proceedings, eg rectification, specific performance, injunction and rescission of a contract (Davis Samuel at [36]).

[63]

[50] Third, although the relevant considerations cannot be exhaustively stated (per McPherson J in Re Gordon Grant and Grant Pty Ltd [1983] 2 Qd R 314 at 317; 7 ACLR 669 at 672, cited with approval in Davis Samuel at [20]), some guidance may be obtained from past cases. Some considerations are identified in Davis Samuel at [30] to [32] and in the cases there cited. They include:

[64]

(a) the amount and seriousness of the claim, the degree of complexity of the legal and factual issues involved, and the stage to which the proceedings, if already commenced, may have progressed;

[65]

(b) whether there will be any procedural or substantive prejudice to the creditors resulting from the proceedings;

[66]

(c) whether the liquidator is likely to reject any proof of debt lodged by the applicant so that an appeal to the court will be necessary;

[67]

(d) the fact that the applicant has claims against others raising substantially the same issues in which case there is a real question of the inconvenience of the applicant having to follow different procedures in respect of all its claims;

[68]

(e) whether the existence of pretrial procedures, such as discovery and interrogatories, are likely to be required or beneficial;

[69]

(f) the amount and seriousness of the claim together with the degree of complexity of the legal question involved; and

[70]

(g) where there would be multiple proceedings were leave not granted, this would be a powerful factor favouring the grant of leave, thus, where one of a number of claims is permissible, leave may be granted for a weaker, associated claim.

[71]

[51] Fourth, it is explicit on the face of the section that the Court may grant leave on terms. It is common, for example, that if leave is granted to proceed with a proceeding which seeks to recover damages from a company in liquidation, the grant of leave is subject to a condition that the applicant would not seek to enforce any judgment it obtained without first obtaining the leave of the Court."

[72]

[46] In addition to the matters listed immediately above, there is the fact that the respondent is insured. As Zeeman J said in Oceanic Life v Insurance and Retirement Services Pty Ltd (in liq):[13]

[73]

"It has been common to grant leave for the commencement or continuance of proceedings for damages against a company which is in the course of being wound up in circumstances where the company is insured against its liability to pay those damages and the costs of defending the proceedings ..."[14]

[74]

[47] For the reasons I have given with respect to the application for leave under PIPA, the following conclusions apply to this application:

[75]

(a) the applicant has not demonstrated that there is a serious question to be tried in the sense that it has not been shown to any relevant degree that there is a claim against the respondent for the damage caused to the applicant's knee and ankles,

[76]

(b) the applicant has not demonstrated that the degree of complexity of the legal and factual issues involved favours the grant of leave, and

[77]

(c) the damages which the applicant might recover on the basis of the claim that it has advanced so far is less than the deductible of the insurance policy.

[78]

[48] The applicant has not demonstrated that leave should be granted to proceed under s 500(2) even had leave been granted under PIPA.
[49] The application is dismissed.

[79]

[1] [1987] 1 Qd R 221.

[80]

[2] [1987] 1 Qd R 221 at 224.

[81]

[3] [1987] 1 Qd R 221 at 226.

[82]

[4] [2012] QCA 159; [2013] 1 Qd R 204.

[83]

[5] [2004] QSC 427; [2005] 2 Qd R 23.

[84]

[6] [2011] QSC 237.

[85]

[7] Bridgeport Pty Ltd v Yelyruss Pty Ltd (in liq) [2011] QSC 237.

[86]

[8] [1996] HCA 25; (1996) 186 CLR 541.

[87]

[9] Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 552.

[88]

[10] [2006] QCA 110; [2006] 2 Qd R 285.

[89]

[11] Winters v Doyle [2006] QCA 110; [2006] 2 Qd R 285 at 292-293 [24].

[90]

[12] [2016] QSC 222; (2016) 116 ACSR 321.

[91]

[13] (1993) 11 ACSR 516.

[92]

[14] (1993) 11 ACSR 516 at 521. See also Doran Constructions Pty Ltd v Beresfield Aluminium Pty Ltd [1999] NSWSC 499; La Trobe Wholesale Finance Pty Ltd v KCRAM Pty Ltd (in liq) (No 1) [2012] FCA 1388.

Palace v RCR O'Donnell Griffin Pty Ltd

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