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 theapplicant suffered injuries at a worksite– where the applicant contendshe became aware of the contractual relationships between relevant parties out oftime –where the applicant applies to extend the limitation period –whether the applicant 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 applicant 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
Limitation of Actions Act 1974 (Qld), ss 11,
30, 31,
Personal Injuries Proceedings Act 2002 (Qld), ss 9, 27,
43
Workers Compensation and Rehabilitation Act 2003 (Qld), s
279
BEK v BEL [2024] QCA 154
Brisbane South Regional Health
Authority v Taylor (1996) 186 CLR 541
Dick v University of
Queensland [2000] 2 Qd R 476
Harris v Evans Built Pty Ltd [2025]
QSC 104
Moriarty v Sunbeam Corporation Limited [1988] 2 Qd R
325
Neilson v Peters Ship repair Pty Ltd [1983] 2 Qd R 419
NF v
State of Queensland [2005] QCA 110
Queensland v Stephenson [2006] HCA 20
(2006)
226 CLR 197
Wolverson v Todman [2015] QCA 74
[2016] 2 Qd R 106
Judgment (19 paragraphs)
[1]
The Applicant's file received from Maurice Blackburn Lawyers does not contain any correspondence providing the Applicant with a copy of the Workplace Health and Safety File (Heffernan Affidavit Exhibit MLH16) or the unsigned and undated contract between the First Respondent and Third Respondent (Heffernan Affidavit Exhibit MLH17).
On 7 April 2025 I obtained a copy of the Affidavit of Timothy McClymont sworn 25 February 2025 from the Supreme Court in Brisbane which was filed in the matter of 9931/22 Harris v Evans Built Pty Ltd & another. Exhibit TAM4 to this Affidavit is a copy of a signed contract between the First Respondent and Third Respondent. This was the first time I was provided a signed contract between the First Respondent and Third Respondent."
[2]
[61] Ms Heffernan was not challenged in relation to any of that evidence.
[62] I accept therefore that neither the applicant's former solicitors, nor his current ones, provided to the applicant a copy of the unsigned and undated contract until 21 April 2025. I further accept that the applicant's former solicitors never received a copy of the signed and dated contract, and that the current solicitors only received it on 7 April 2025.
[63] The parties to the unsigned, undated agreement were identified as Evans Built as the main contractor, and Assured Concreting Services Pty Ltd atf Integral Concreting Services Family Trust, was described as the subcontractor. The subcontract was in the form an Australian Standard 4903-2000 and was for a sum of $394,454.50. The contract included numerous attachments identified as Parts A to N.
[64] At the date the unsigned subcontract document was disclosed by way of correspondence of 8 September 2023, it was over four years since the applicant's accident had occurred and almost three years since the applicant had given his PIPA notice of claim to Evans Built. It was almost one year since the applicant had given his notice of claim to WorkCover, and more than six months since WorkCover had confirmed the notice of claim was compliant. Despite the fact that both sets of pre-court procedures had been on foot for some time, with the attendant disclosure obligations that each involved, neither respondent to the pre-court procedures had previously disclosed the unsigned, undated subcontract.
[3]
[65] There are a number of features which satisfy me that there ought to be an order for an extension of time in the applicant's favour. In addressing these issues, I bear in mind the two principles articulated in Neilson v Peters Ship repair Pty Ltd[8] that first, as a matter of statutory construction, where a solicitor is engaged, the person whose knowledge is relevant for s 31(2) LAA purposes is the client, not the solicitor, and second, that in engaging a solicitor the plaintiff must still do their best to ensure that the solicitor does not languish in the prosecution of the action.[9]
[66] The first respondent contends that the evidence shows that by 12 December 2023, the applicant's current solicitors had the following collection of information available to them:
[4]
(a) a statement which the applicant had made to the Department Workplace Health and Safety, in which the applicant stated that "Assured Concrete Services Pty Ltd" was performing work on the site subcontracting to Evans Built;
(b) an unexecuted copy of the subcontract which had been obtained from Evans Built, which contract recorded Assured Concreting Services Pty Ltd as the subcontractor. The unexecuted and undated subcontract also recorded Assured Concreting Services (ABN 29584334198) and its QBCC licence number 15007056;
(c) employment records showing that the applicant's employer was "The Trustee for the QLD Tilt Panels Family Trust" which had a different ABN to that shown in the unexecuted subcontract (ABN 29470806062);
(d) evidence that the depth of the trench was 1540 millimetres on the high side;
(e) the Safe Work Method Statement bearing the logo Assured Concreting Services which provided, amongst other things, that workers were not to enter any trench of the depth of more than 1.5 metres unless the trench was bench, battered or shored;
(f) evidence that the trench was not benched, battered or shored and that Assured Concreting had no control measures in place to prevent the trench collapsing; and
(g) identified grounds of negligence causative of the applicant's injuries alleged against the applicant's employer (who by that state the applicant's solicitors believed to be the subcontractor), that there was a failure to ensure that there was adequate ground support, i.e. shoring to avoid the risk of the trench collapsing and a failure to provide "dial before you dig" information or to ensure that Evans Built had done so.
[5]
[67] So described, the first respondent seeks to characterise that the material facts of a decisive character relating to the right of action (against the first respondent) were within the applicant's means of knowledge by that date.[10]
[68] There are a number of things to be said about this submission.
[69] Firstly, the date which the defendant identifies of 12 December 2023, is the date that the applicant's current solicitors received the applicant's file from his former solicitors. It is unrealistic to expect that the applicant's current solicitors had the ability to read, consider and form an opinion about all the factual matters contained in the file on the very day they received it. Nevertheless, I put the date itself aside for the balance of the submissions.
[70] Second, whilst it is the combination of factors which the first respondent identifies as the material fact of a decisive character relating to the right of action (against the first respondent) which may have been within the applicant's means of knowledge, it is important to look at each such factor both individually and collectively.
[71] The first respondent places some significant weight on the applicant's statement to the Department of Workplace Health and Safety, that Assured Concrete Services Pty Ltd were performing work on the site subcontracting to Evans Built. It is true that the applicant's statement records this, but the statement is taken somewhat out of context. The statement that Assured Concrete Services were subcontracting to Evans Built was said by the applicant in the context of his statement that he was in fact employed by Assured Concrete Services Pty Ltd. That of course is inaccurate; he was in fact employed by the second respondent. In the same way, the applicant identified that the site foreman, Mark Harris, was also employed by Assured Concrete Services Pty Ltd when, factually, the matter proceeded before me on the basis that that was also inaccurate, as Mr Harris was also employed by the second respondent.
[72] To the extent that the applicant's statement to Workplace Health and Safety described that "Assured" was "contracting to" Evans Built does not suggest to me any genuine understanding of the contractual relationship that in fact existed between the first and third respondents, but rather was a descriptor to identify the party who Mr Perry thought was responsible for the site as the principal contractor (the third respondent) as opposed to the party by whom he was employed, in truth the second respondent.
[6]
(a) the first and second respondents were different entities;
(b) the subcontract was in fact between the first and third respondents;
(c) Mr Chabau was a director of the first respondent, which was responsible for carrying out the works;
(d) the location of the stormwater drain was communicated to Mr Chabau and Mr Harris;
(e) the Safe Work Method Statement had been completed by Mr Chabau;
(f) the photographic evidence showed that the first and/or second respondent must have excavated around the storm water drain and therefore must have known of the presence of the pipes on the site;
(g) requested that the scheduled compulsory conference could be re-scheduled to allow Evans Built to serve a contributor's notice on the first respondent.
[7]
[83] At the same time, Carter Newell provided a large number of documents going to the liability case which had not previously been disclosed.
[84] In my view, it can hardly be supposed that in circumstances where by 17 June 2024, numerous sets of experienced personal injuries solicitors (Maurice Blackburn, Mullins, Clyde & Co, Carter Newell and L&H Injury Lawyers) actively turning their minds to the issue of the identity of a party and their role in the contractual circumstances, were not in a position to identify the first respondent as a contributor against whom there might be evidence to establish a right of action, that a lay person such as Mr Perry ought to have been able to do so six months earlier, i.e. by 12 December 2023. Mr Perry did not have access to material (including a signed contract) which would have allowed him to do so, and he had no reason to think his employer was other than the party who had contracted with Evans Built. He acted reasonably by leaving the matter in the hands of his solicitors in the particular circumstances of this case.
[85] In the circumstances, I am not satisfied that individually or in combination, the matters relied upon by the first respondent set out at [66] could constitute the material facts of a decisive character necessary to deny the extension of time.
[86] I am fortified as to the reasonableness of Mr Perry's conduct by regard to the related issue of disclosure.
[87] 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". Evans Built therefore had such an obligation having been served with a Notice of Claim on 25 September 2020. The unsigned, undated copy of the contract was provided to the former solicitors for the applicant by the solicitors for Evans Built on 23 September 2023. No signed copy of the contract was provided until Ms Heffernan sought it out in the related matter of Harris, in which she did not act. She says that occurred on 7 April 2025, and she was not challenged in relation to that. I accept that evidence.
[88] Similar disclosure provisions exist under the WCRA as under PIPA. Section 279 requires the parties to cooperate in relation to a claim by giving each other copies of relevant documents within 21 business days of the claimant giving the insurer a notice of claim. Again, no signed and dated contract was produced by the second respondent in the WCRA proceedings, although I pause to observe that it might be thought to be much less likely that the second respondent would have had access to that contract given that the contract was between the third respondent and the first respondent, and not the employer.
[8]
[1] The claimant did not describe the employer as Assured Concreting Services, but as Assured Concrete Services. As such, the identified employer in this document is neither the first, second nor third respondent.
[73] I therefore do not take the applicant's statement to be evidence of his actual knowledge of the contractual arrangements which existed at the time of the accident. But even if it was, it was inaccurate, as the employer in fact had no contractual relationship to the third respondent.
[74] Thirdly, there is no such company as Assured Concrete Services Pty Ltd, nor is there any such business name. There is of course a company, Assured Concreting Services Pty Ltd, the first respondent to these proceedings, but that is not the company who the applicant identified to the Department of Workplace Health and Safety. The applicant was never employed by the company which he identified as his employer to the Department of Workplace Health and Safety. Indeed, I would take the applicant's knowledge as communicated to the Department of Workplace Health and Safety in the days after the accident as demonstrating that he understood he worked for a business generally known as Assured Concreting Services, as demonstrated on the shirt that he wore and the vehicle in which he drove. The misidentification of the business name in the Department of Workplace Health and Safety statement was simply an error which was not picked up by the applicant when he signed that statement nor in fact by the Department of Workplace Health and Safety officers whose job it was to investigate the accident.
[75] Fourth, Mr Perry has given evidence that he had no knowledge of the unexecuted contract between the first and third respondents. He was not cross-examined on that issue, or at all. I reject the first respondent's submission that he in fact had that knowledge by 12 December 2023. However, it is the means of knowledge of the applicant which is relevant, and the question of whether he has taken all reasonable steps to find out that knowledge.[11] As such, it is a question of fact whether in a given case, to leave such matters to a solicitor amounts to taking reasonable steps.
[76] It is significant, in my view, that upon the applicant's new solicitors taking over the file on 12 December 2023, they reviewed all the material contained in it and did not identify that there was a likely contributor, the first respondent, who had not been joined to the proceeding. The solicitor formed the view that there was further disclosure to be obtained from WorkCover and the employer, and requested it on 19 January 2024. The request pertained to a broad range of matters (predominantly information pertaining to liability issues, about their client's knowledge of the presence of the stormwater pipe in the vicinity of the collapsed trench), but the identification of a contributor not previously joined was not one of them. At that stage, there was no signed contract disclosed, and no reason for the new solicitors to think that there was one.
[77] A similar request for further disclosure was made on that same date to Clyde & Co on behalf of Evans Built. Again, the request went to liability related issues.
[78] No replies were forthcoming, and the solicitor for the plaintiff followed the issue up on 29 February 2024 with both parties.
[79] On 11 March 2024 Mullins replied, and on 22 May 2024, Carter Newell replied now on behalf of Evans Built. Still no issue was raised by either firm as to the likely involvement of the first respondent.
[80] On 7 June 2024, a solicitor at Carter Newell telephoned Ms Heffernan and advised (amongst other things) that since he had come into the matter it had come to his attention that the party who Evans Built contracted with was not the same party who "seemed" to employ the applicant. The solicitor had raised the issue with WorkCover but had not had a response. Ms Heffernan recorded that the solicitor seemed to think that the parties were related, but was unsure of the relationship between them.
[81] Ms Heffernan wrote to WorkCover on 12 June 2024, seeking information as to the relationship between the parties now described as the first and second respondents, and enquiring as to who employed the applicant's supervisor, Mr Harris.
[82] On 17 June 2024, Carter Newell advised Ms Heffernan that:
[89] What follows from the provisions of PIPA in particular, is that the applicant here, acting reasonably and in his own interests, can fairly proceed on the basis that relevant documents in a respondent's possession ought to have been disclosed in the pre-court processes, and it was not. The fact that no contributors notice was given by the third respondent to the first respondent would have, in my opinion, reinforced that reasonably formed view.
[90] And, as I said in the related case of Harris,[12] whilst it is not necessary to blame the third respondent for the failure to provide the documentation earlier, relevantly for the purpose of the enquiry, it informs the question of the reasonableness of the applicant's own conduct, as well as that of his advisors. To the extent that there was disclosure of an unsigned version of the subcontract which was provided in September 2023, it expressly recorded that it was documentation "prior to any contract being formalised". Given that no copy of the signed contract was produced by the third respondent until 13 May 2025, at the time of receiving the unsigned contract in September 2023, some four years after the accident had occurred, it would have been a fair assumption on the applicant's part that there was no such signed contract in respect of the works which were being carried out.
[91] In all the circumstances it seems to me that the plaintiff did not have the material facts of a decisive character within his means of knowledge at any time prior to 17 June 2024 and there ought to be an order pursuant to s 31(2) of the LAA extending the limitation period.
[92] As I recorded at the outset, when the matter was heard by me on 15 May 2025 the parties agreed that, so as to protect the plaintiff's interests pending the reserved judgment, the court ought to order that the applicant be granted leave pursuant to s 43(1) of the PIPA to commence proceedings in the Supreme Court of Queensland for damages based on the liability for personal injuries against the first respondent. A further order was made that that proceeding be stayed pending judgment of the applicant's application pursuant to s 31(2) of the LAA and thereafter, if appropriate, until the applicant complies with Chapter 2 Part 1 of PIPA, or the proceedings are discontinued or otherwise end. That order was made by me on 15 May 2025. The expiration of the limitation period therefore having otherwise being protected by that order, it is appropriate to make the following order:
Pursuant to s 31(2) of the Limitation of Actions Act 1974 (Qld) the limitation period in respect of the applicant's claim for damages for personal injury arising on 23 August 2019 against the first respondent be extended until 17 June 2025.
[93] The proceeding otherwise being stayed by virtue of the order which I made on 15 May 2025, the proceeding will remain stayed until the applicant complies with Chapter 2 Part 1 of PIPA, or until the proceedings are discontinued or otherwise end.
[94] The application for the extension of limitation period having been successful, the first respondent is ordered to pay the applicant's costs of the application on a standard basis.