Roberts v ANZ Banking Group Ltd [2005] QCA 470

SUPREME COURT OF QUEENSLAND

CITATION: Roberts v Australia and New Zealand Banking Group Ltd [2005] QCA 470

PARTIES: HEATHER JOY ROBERTS (plaintiff/respondent) v AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED ACN 005 357 522 (defendant/applicant/appellant)

FILE NO/S: Appeal No 5639 of 2005 / DC No 1625 of 2005

DIVISION: Court of Appeal

PROCEEDING: Application for leave s 118 DCA (Civil)

ORIGINATING COURT: District Court at Brisbane

DELIVERED ON: 16 December 2005

DELIVERED AT: Brisbane

HEARING DATE: 18 November 2005

JUDGES: de Jersey CJ, Jerrard JA and Mackenzie J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: The applicant is granted, pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld), leave to appeal against the judgment of the District Court of 14 June 2005The appeal is allowedThe orders made in the District Court are set asideThe proceeding in the District Court is struck outThe respondent pay the appellant’s costs, to be assessed, of the proceeding in the District Court and the appeal

CATCHWORDS: WORKERS' COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – PRELIMINARY REQUIREMENTS – CLAIMS FOR COMPENSATION – GENERALLY – where the appellant had failed to comply with the statutory scheme in commencing a claim for damages – where s 280A of the WorkCover Queensland Act 1996 (Qld) authorised the appellant to waive a claimant’s non-compliance in certain circumstances – where the claimant’s request did not comply with the requirements of, or purport to be referable to, s 280A – where s 305 of the Act allowed the court to give leave to bring the proceeding despite non-compliance with the requirements of the statutory scheme – whether the appellant waived compliance with the statutory scheme under s 280A – whether an order granting leave under s 305 may be made after a proceeding has been commenced / ESTOPPEL – ESTOPPEL IN PAIS – MATTERS AGAINST WHICH ESTOPPEL DOES NOT PREVAIL – STATUTORY PROVISIONS – where respondent sought and relied, in commencing her proceeding, on a “conditional damages certificate” issued by the appellant – where a different statutory scheme applied at the date of issue of the certificate – where the appellant, after expiration of the limitation period, sought an order that the proceeding be struck out as a nullity due to the respondent’s non-compliance with the statutory scheme – whether the appellant was estopped from denying the validity of the proceeding because the respondent had commenced the proceeding relying on the appellant’s certificate / ESTOPPEL – ESTOPPEL IN PAIS – THE REPRESENTATION – BY CONDUCT – WAIVER – whether the need to comply with s 280 of the Act, or secure a waiver under s 280A or a grant of leave under s 305, were enacted for the public benefit – whether the appellant waived the respondent’s non-compliance with s 280 of the Act – whether the appellant was thereby estopped from denying the validity of the proceeding / District Court of Queensland Act 1967 (Qld), s 118(3) / WorkCover Queensland Act 1996 (Qld), s 98, s 252, s 262, s 280, s 280A, s 282, s 302, s 303, s 305, s 308 / WorkCover Queensland Regulation 1997 (Qld), s 74 / Beckford Nominees Pty Ltd v Shell Co of Australia Ltd (1987) 73 ALR 373, cited / Bonser v Melnacis [2000] QCA 13; [2002] 1 Qd R 1, applied / Clarke v Australian Asphalt (Qld) Pty Ltd [2004] QSC 302; SC No 6111 of 2002, 15 September 2004, cited / Commonwealth v Hamilton [1992] 2 Qd R 257, cited / Commonwealth v Verwayen (1990) 170 CLR 394, considered / Day Ford Pty Ltd v Sciacca [1990] 2 Qd R 209, cited / Glenco Manufacturing P/L v Ferrari & Anor [2005] QSC 005; SC No 9439 of 2004, 17 January 2005, considered / Green v Suncorp Metway Ltd & Ors [2000] QSC 12; [2001] 1 Qd R 485, cited / Haley & Anor v Roma Town Council [2005] QCA 003; [2005] 1 Qd R 478, cited / Hamling v Australia Meat Holdings P/L [2005] QCA 415; Appeal No 4149 of 2005, 11 November 2005, cited / Holmes v Adnought Sheet Metal Fabrications Pty Ltd & Anor [2003] QSC 321; [2004] 1 Qd R 378, applied / Kash v SM & TJ Cedergren Builders & Ors [2003] QSC 426; [2004] 1 Qd R 643, cited / State of Queensland v Coffey [2005] QSC 212; SC No 595 of 2004, 29 July 2005, cited / Tanks v WorkCover Queensland [2001] QCA 103; Appeal No 9435 of 2000, 20 March 2001, applied

COUNSEL: M O'Sullivan for the appellant / G Mullins for the respondent

SOLICITORS: Tutt Down McKeering Solicitors for the appellant / Maurice Blackburn Cashman for the respondent

de JERSEY CJ: On 13 July 2004, the respondent commenced a proceeding in the District Court. In that proceeding she claimed damages for negligence in respect of psychological injury allegedly suffered in the course of her employment because of the conduct of a co-worker, for which her employer, the appellant, was vicariously liable. The conduct allegedly occurred over the period August 2001 to August 2002.

The issue before the learned primary Judge was the validity of that proceeding: the respondent sought a declaration it was valid; the appellant sought an order that the proceeding be struck out.

The respondent relied, in commencing her proceeding, on a “conditional damages certificate” issued by the appellant, a “self-insurer” under the WorkCover Queensland Act 1996 (Qld) (“the Act”) (s 98). The appellant purportedly issued that certificate under s 273H of the Workers’ Compensation and Rehabilitation Act 2003 (Qld). But as at the date of issue of the certificate, a different statutory scheme applied.

Before the primary Judge, the appellant contended the District Court proceeding was consequently a nullity. The respondent raised arguments of estoppel and waiver against the appellant.

The Judge held that “if necessary” he would find that the appellant waived the statutory formalities, under s 280A of the Act. But he followed what he described as a “much clearer” path, granting the respondent leave under s 305. That was leave to start the proceeding notwithstanding non-compliance by the respondent with s 280. It was a grant of leave made nunc pro tunc.

The appellant challenged His Honour’s order on two bases: first, whether or not such an order should be made had not been raised by or with the parties, and was consequently not the subject of submissions to the Judge; and second, that the Judge lacked power to make an order nunc pro tunc.

Leave to appeal

Because of the interlocutory character of the order made by the primary Judge, the applicant, which I have been calling the appellant, seeks leave to appeal under s 118(3) of the District Court of Queensland Act 1967 (Qld). The case raises important questions of general application, and the resolution of those questions is of considerable significance to the parties. Leave to appeal should therefore be granted.

The factual circumstances in more detail

By an application for compensation dated 20 August 2002, the respondent sought compensation, nominating 6 August 2002 as the date she first consulted a doctor in relation to her condition. By letter dated 16 April 2004, the solicitors for the respondent sought a conditional damages certificate: limitations issues were about to arise. In response, on 30 April 2004, the appellant asked the respondent’s solicitors to identify the date when the respondent’s injuries commenced. On 11 May 2004 the respondent’s solicitors advised the date was August 2001. The appellant issued a “conditional damages certificate” dated 8 June 2004.

The body of the certificate reads as follows:

“Permanent Impairment from Injury

This Conditional Damages Certificate is issued, pursuant to Section 273H of the Worker’s Compensation and Rehabilitation Act 2003 on the basis that there is an urgent need to bring proceedings for damages.

A Conditional Damages Certificate is issued when ANZ Bank is not satisfied that:

The person was a worker when the injury was sustained; or

The worker has sustained an injury within the terms of the Act; or

The worker’s degree of Permanent Impairment has been assessed in the way mentioned for the injury under Chapter 3, Part 9 of the Act.

This certificate allows proceedings to be commenced, however, the proceedings are stayed until the above matters are resolved. When the above matters have been resolved, ANZ Bank may issue a Unconditional Damages Certificate, which will allow you to continue proceedings.

Please note that you must comply with Chapter 5 of the Act to continue proceedings.”

Relying on that certificate, the respondent commenced her proceeding in the District Court on 13 July 2004.

The legislative framework

As may be seen, the appellant purportedly issued the certificate under s 273H of the Workers’ Compensation and Rehabilitation Act. (In fact, there was no such section. There is a s 273H in the WorkCover Queensland Act, but it does not refer to the issue of certificates.) The Workers’ Compensation and Rehabilitation Act commenced on 1 July 2003. It had no application to the respondent’s injury which occurred over the period August 2001 to August 2002. Because the injury occurred after 1 July 2001, the WorkCover Queensland Act, as amended by the WorkCover Queensland Amendment Act 2001 (Qld), applied. The latter amending Act commenced on 1 July 2001.

Previously, a “worker” could not seek damages until he or she received a “notice of assessment” and had complied with a range of requirements (Ch 3, Pt 9, Div 3). But in urgent circumstances, notwithstanding the permanent impairment had not been assessed or agreed (s 262(2)), WorkCover or a self-insurer could issue a conditional damages certificate. That certificate authorised the commencement of a proceeding, but it would be stayed until WorkCover (or the self-insurer) made the certificate unconditional, and the claimant had complied with Pts 5 and 6 of Ch 5 of the Act. What happened in this case resembles the procedure envisaged by the former s 262.

The WorkCover Queensland Amendment Act, applicable here, omitted the conditional damages certificate provisions (s 262(2) and (3)), substituting a different regime (ss 259-273G). The primary new provision, as applicable here, was s 280A, according WorkCover the right to waive non-compliance with statutory requirements, and in a complementary way, s 305, under which the court could give leave to commence proceedings notwithstanding non-compliance. Those are the sections to which the primary Judge referred.

Crystallization of the issues

On 8 March 2005, the solicitors for the appellant asserted, in a letter to the solicitors for the respondent, that because the applicable legislation did not contemplate the issue of a conditional damages certificate, the proceeding commenced by the respondent was unauthorized and null. On 15 March 2005, the solicitors for the respondent contended in reply that because the respondent had commenced the proceeding relying on the appellant’s certificate, the appellant was estopped from denying the validity of the proceeding.

The primary judgment

Section 280A, which authorized WorkCover (and as applicable, a self-insurer: s 119(1)(a)) to waive a claimant’s non-compliance with the statutory scheme in certain circumstances, provides:

“280A Noncompliance with s 280 and urgent proceedings

The purpose of this section is to enable a claimant to avoid the need to bring an application under section 305.

Without limiting section 304 or 305, if the claimant alleges an urgent need to start a proceeding for damages despite non-compliance with section 280, the claimant must, in the claimant’s notice of claim:

(a)state the reasons for the urgency and the need to start the proceeding; and

(b)ask WorkCover to waive compliance with the requirements of section 280.

(3)The claimant’s lawyer may sign the notice of claim on the claimant’s behalf if it is not reasonably practicable for the claimant to do so.

(4)The claimant’s notice of claim may be given by fax in the way provided for under a regulation.

(5)WorkCover must, before the end of 3 business days after receiving the notice of claim, advise the claimant that WorkCover agrees or does not agree that there is an urgent need to start a proceeding for damages.

(6)If WorkCover agrees that there is an urgent need to start a proceeding for damages, WorkCover may, in the advice to the claimant under subsection (5), impose the conditions WorkCover considers necessary or appropriate to satisfy WorkCover to waive compliance under section 282(2)(b).

(7)The claimant must comply with the conditions within a reasonable time that is agreed between WorkCover and the claimant.

(8)The claimant’s agreement to comply with the conditions is taken to satisfy section 308(1)(a)(ii).”

The learned Judge expressed the following reasoning as to the applicability of s 280A:

“The plaintiff’s solicitors’ request [the letter of 16 April 2004] cannot be said strictly to comply with the requirements of s.280A. But it does raise the Limitation Act and the letter of 11 May 2005 identifies the date of the alleged injury. The time remaining under the Limitation Act was then less than three months, so the requirements of s.280A(2)(a) were, I consider, adequately covered. There was no express request to waive the requirements of s.280 but it is patent that the request was to allow action to begin notwithstanding the plaintiff’s failure to comply with the pre-action requirements of s.280 of WCA.

Section 280A(5) and (6) obviously allows WorkCover to decide whether it is content to treat the claimant’s ‘notice’ as sufficient. Had it been WorkCover rather than a self insurer which wrote the letter and issued the CDC, containing especially the final two paragraphs, I consider that a clear waiver of statutory formalities would be established. And s.119(1)(a)(iii) gives to ANZ the same functions and powers as those of WorkCover under s.280A. If necessary I would hold that ANZ has waived the statutory formalities.”

But his Honour relied, in a more immediate sense, on s 305 of the Act, which provides:

“305 Court to have given leave despite noncompliance

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

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

He took account of the following circumstances bearing on the exercise of his discretion:

“1. The alleged injury was sustained at work in an ANZ Branch, between August 2001 and August 2002.

The plaintiff applied formally for compensation on 20 August 2002, that is, promptly upon the alleged sustaining of the injury.

There are a number of medical reports available detailing her complaints. These provide a valuable record, available to ANZ.

So ANZ has, from an early date, been aware of the plaintiff’s allegations and, under WCA, has had wide powers of investigation (e.g. s.162).

The plaintiff’s solicitors’ error was a patent one and in essence was one of form, not substance, because it has not resulted in the withholding of any information or displayed any lack of co-operation with ANZ. Indeed if she is permitted to commence the proceedings they can be stayed until all statutory pre-litigation requirements are fulfilled.

It would be unconscionable to allow ANZ, having compounded the error, to resile from its acceptance of the plaintiff’s right to commence proceedings. Had ANZ immediately pointed out the error the plaintiff would have had time to correct it before the limitation period expired.

Section 279A sets out the over-riding obligations of parties and emphasises the avoidance of “undue delay, expense and technicality to facilitate the object of Part 5 of Chapter 5 of WCA. That is said to be (s.279) “to facilitate the just and expeditious resolution of the real issues in a claim for damages at a minimum of expense”.”

In the result, His Honour exercised his discretion in favour of the respondent.

The statutory scheme

As confirmed in Bonser v Melnacis [2002] 1 Qd R 1, the WorkCover Act scheme abolished any entitlement on the part of an injured worker to commence a proceeding against an employer dehors that statutory scheme; and any right to commence a proceeding depended thereafter on compliance with the legislative requirements. See also Hawthorne v Thiess Contractors Pty Ltd [2002] 2 Qd R 157. I return to this in relation to s 305.

Estoppel and waiver

It is well established that notions of estoppel and waiver do not run against a statute: if an entitlement to sue depends on compliance with statutorily prescribed conditions, non-compliance will not be excused because of what may otherwise conventionally amount to waiver or estoppel. See Day Ford Pty Ltd v Sciacca [1990] 2 Qd R 209, 216-221; Commonwealth v Hamilton [1992] 2 Qd R 257, 267-8; Beckford Nominees Pty Ltd v Shell Co of Australia Ltd (1987) 73 ALR 373, 379.

I am not satisfied the need to comply with s 280, or securing a waiver under s 280A or a grant of leave under s 305, lack the public dimension premising the exclusion of concepts of estoppel and waiver (cf. Commonwealth v Verwayen (1990) 170 CLR 394, 486, 497). The objects of the legislation set out in Pt 2 of Ch 1 disclose both a public and a private dimension which cannot be disentangled as Mr Mullins, for the appellant, would submit. It cannot be concluded provisions like s 280, s 280A and s 305 have a significance confined to the claimant and the insurer: they form part of an elaborate scheme with a broad public orientation (cf. s 5), embracing its financial viability and flow-on features like CTP insurance premium levels. Tightly regulating the circumstances in which claims may be pursued in court cannot be characterized as of concern only, or even primarily, to the parties immediately affected.

A recent illustration of the exclusion in this context of estoppel is provided by Glenco Manufacturing P/L v Ferrari & Anor [2005] QSC 005. The employee argued the employer was estopped from contending that he had no cause of action, as the employer had responded to a Notice of Claim, requested a further Notice, a statutory declaration and further information. Douglas J concluded: ([7])

“Estoppel cannot make valid a transaction which is invalid by statute, however, as no estoppel will prevail against the law; United Grocers, Tea and Dairy Produce Employees’ Union of Victoria v Linaker (1916) 22 CLR 176, 179. Nor may an estoppel by representation or conduct be used to expand the scope of a statutory power; generally see Halsbury’s Laws of Australia at [190-25]. The previous false assumptions of Glenco about its obligations cannot prevent it from relying now on the proper application of the Act nor could it give the applicant a right denied to him by statute.”

But of course, to the extent that the legislation expressly or implicitly contemplates the possibility of waiver, that may occur. The primary Judge accordingly referred to s 280A. (See also s 282.) He considered the respondent’s solicitor’s letter of 16 April 2004 (although not written with respect to s 280A), and the issue of the conditional damages certificate, brought the matter within the scope of s 280A (and implicitly, s 282(2)(b)).

The only relevant passages in the letter of 16 April 2004 are these:

“Further the injury in this matter occurred over a period of time and we wish to issue proceedings to protect the time limit.

Please provide a Conditional Damages Certificate to enable us to do so.”

That was not contained in a “notice of claim” (s 280A(2), and see the definition of “notice of claim” in schedule 3). There was no notice of claim which even purported to comply with s 280, so far as compliance was possible. Furthermore, the letter did not request the appellant to waive compliance (s 280A(2)(b)). There was no compliance with s 280A(5) on the part of the appellant, nor, expressly with s 280A(6). The “conditional damages certificate”, recording the attitude of the appellant, was purportedly issued under inapplicable legislation, with no direct or implied reference to s 280A of this Act, or s 282 which prescribes the way the appellant should have responded to any request for waiver under s 280A.

To construe what occurred as referable to s 280A involves an unduly creative judicial effort. Unfortunate as it may be, neither side adverted to the applicable statutory regime, and to cast what they did into the relevant regime involves a degree of contrivance. The learned Judge’s apparent sympathy for the position of the respondent is understandable, and his conclusion would no doubt generally be considered fair. But it was not, in my respectful view, authorized under the strict scheme established by this legislation, and the court is of course bound by its strictures. I do not consider the appellant should be regarded as having waived compliance, under s 282(2)(b).

It has been unnecessary for me to deal with the submission of Mr O'Sullivan, who appeared for the appellant, that any issue of waiver or estoppel was not susceptible of orderly determination other than after the delivery of pleadings (Clarke v Australian Asphalt (Qld) Pty Ltd [2004] QSC 302, [57], Mullins J).

It follows that I respectfully disagree with Jerrard JA’s reserving the possibility of the respondent’s establishing waiver or estoppel. The issue, in terms of Verwayen is the public-private orientation of s 280, which I consider not private or even predominantly so. I respectfully disagree with His Honour’s obiter dictum that the respondent “is not … shut out from eventual success”. I would not wish anything I have said to be interpreted as offering the respondent any encouragement to make applications within the confines of this particular legislation.

The s 305 discretion

There is substance to the complaint His Honour should, before exercising the discretion under s 305, have directed the parties to the possibility of reliance on the provision, and invited their submissions as to how such a discretion should be exercised. Notwithstanding his balancing of the relevant considerations appears compelling, the legitimacy of that process must depend on the participation of the parties.

But the appellant raises a matter of anterior significance: whether an order granting leave under s 305 may be made after a proceeding has been commenced – in well-understood if unfashionable language, nunc pro tunc.

Perhaps reflecting a judicial disposition that common law discretions remain ample, courts have sometimes regarded discretions authorizing or validating situations as exercisable notwithstanding the relevant events are in the past. Not infrequently, for example, a court will grant leave to proceed against a company in liquidation (s 471B Corporations Act 2001 (Cth)) notwithstanding the proceeding is extant. But whether that is consistent with the imputed legislative intent depends on the language of the applicable legislation.

One notes, immediately, that the language of s 305 would, ordinarily construed, assume that leave is to be granted prior to the commencement of the proceeding in question: “The claimant may start the proceeding if the court … gives leave”. The Act does not go on to say that leave may be granted notwithstanding the proceeding had already been commenced without a precedent grant of leave. The language of the provision is prospective.

In Holmes v Adnought Sheet Metal Fabrications Pty Ltd [2003] QSC 321, Dutney J expressed the view the s 305 discretion could not be exercised nunc pro tunc, and as noted by counsel for the appellant, His Honour’s view was referred to, either with approbation or without disapproval, in Queensland v Coffey [2005] QSC 212, [19] (Moynihan SJA – in relation to the comparable position, s 43 Personal Injuries Proceedings Act 2002 (Qld)), Kash v SM & TJ Cedergren Builders [2003] QSC 426; [2004] 1 Qd R 643, 648, and Haley v Roma Town Council [2005] QCA 003; [2005] 1 Qd R 478.

In Holmes, Dutney J said: ([20])

“Since the cause of action is postponed until the requirements of the legislation are met I do not believe this Court has the power to grant leave under s 305 of the Act to commence proceedings having retrospective effect to a period before the cause of action arose.”

I agree with that view, based on the analysis in Tanks v WorkCover Queensland [2001] QCA 103. Williams JA there said that: ([50])

“the provisions of Chapter 5 operate so that proceedings to enforce the common law cause of action cannot be commenced (the worker cannot sue) unless the requirements specified therein are complied with; the right to commence proceedings is suspended until the requirements of the Act are satisfied.”

See, to similar effect, [26] per Davies JA.

This proceeding was commenced without leave and without the lodging of a notice of claim under s 280 of the Act. Section 280(1) requires that “[b]efore starting a proceeding in a court for damages, a claimant must give notice under this section within the period of limitation ...”. Compliance with the requirements under the Act is mandatory. Section 302(b) provides that a claimant may start a proceeding “only if the claimant has complied with … part 5”. Section 280 falls within Pt 5. These are provisions of substantive not procedural law (s 252(1)). If a claimant does not comply with s 280, secure a waiver under s 280A, or secure a grant of leave under s 305, any proceeding is a nullity (Tanks).

Mr Mullins referred to s 267(3), which provides that a “claimant may, under section 305, seek leave to start a proceeding … without complying with section 302”. If leave is given, the proceeding commenced is stayed until, among other things, there is compliance with s 302 (s 267(4)). It is s 302 which provides that a claimant can start a proceeding only after compliance with various parts of the Act, including Pt 5 of Ch 5 – which includes s 280. I do not consider that favours a construction of s 305 which would encompass a grant of leave after proceedings have been commenced.

The effect of an order under s 305, in a case where the limitation period is about to expire, is to trigger an extension of that period while the claimant complies with the Act (cf. Goerecke v State of Queensland [2004] QDC 273, McGill DCJ). But the grant of leave must occur before the limitation period expires (s 308(1)(a)(ii)). Since the leave under s 305 is “[s]ubject to section 303”, a claimant is obliged to commence the proceeding no earlier than six months after the grant of leave (s 303(a)(iii)). None of this bears on a case where, notwithstanding non-compliance with the pre-litigation requirements of the Act, the claimant commences a proceeding in the absence of waiver under s 280A or a grant of leave under s 305; and it does not support the ample construction of s 305 for which the respondent contended.

Strict though the result may be, I consider the inapplicability of s 305 to a proceeding already commenced without compliance with s 280 accords with the intent directly evident in the legislation with respect to the s 305 discretion. It is, in short, a confined and controlled regime, and where s 305 is cast in prospective terms, there is accordingly particular reason not to depart from that prima facie position. Section 305 does not authorize the granting of leave nunc pro tunc.

Orders

I would make the following orders:

that the applicant be granted, pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld), leave to appeal against the judgment of the District Court of 14 June 2005;

that the appeal is allowed;

set aside the orders made in the District Court;

that the proceeding in the District Court is struck out;

that the respondent pay the appellant’s costs, to be assessed, of the proceeding in the District Court and the appeal.

JERRARD JA: In this appeal I have had the benefit of reading the reasons for judgment of the Chief Justice, and the orders proposed by His Honour. I respectfully agree that each of those orders should be made, but should explain that I consider the kaleidoscope of provisions in the WorkCover Queensland Act 1996 (Qld) (“the Act”), to do with starting a proceeding and limitation periods, means those orders will not put an end to the respondent plaintiff’s arguable right to bring her claim against the appellant defendant.

I gratefully adopt the succinct statement by the Chief Justice of the relevant facts and applicable law. Those facts show that the respondent’s solicitors wrongly assumed between mid-April 2004 and early March 2005 that those solicitors had complied with the applicable requirements of the Act. That assumption was based on a mistake as to the applicable section.

Section 262 of the Act, which the respondent’s solicitors wrongly assumed still applied, had provided as follows:

“262.(1) The injury sustained by the claimant must be assessed in the way provided for under chapter 3, part 9.

(2) The claimant cannot seek damages until WorkCover gives the claimant a notice of assessment and the claimant has complied with the requirements of chapter 3, part 9, division 3.

(3) However, WorkCover may give the claimant a conditional damages certificate if there is an urgent need to bring proceedings for damages and the claimant’s permanent impairment has not been assessed or agreed.

(4) If a conditional certificate is given, the claimant may start proceedings for damages for the injury, but the proceedings are stayed until WorkCover makes the certificate unconditional and the claimant complies with parts 5 and 6.

(5) WorkCover must make the certificate unconditional when the claimant has been assessed and has been given a notice of assessment.”

The matters recorded in the judgment under appeal include that the appellant made the same mistake (about s 262 still applying) from mid-April 2004 until on or about 15 October 2004, when solicitors it engaged in mid September 2004 alerted the appellant to its mistake. Those solicitors advised the plaintiff’s then solicitors of the latter’s error in early March 2005. In the period when the appellant and the respondent’s then solicitors were acting under the same operative mistake as to the law the appellant agreed, or represented it agreed – as demonstrated by the letter of 8 June 2004 and the conditional damages certificate issued on 20 May 2004 – with the respondent’s solicitors that:

there was an urgent need for the plaintiff to bring her proceedings;

before the plaintiff’s permanent impairment was assessed or agreed;

that the plaintiff could start proceedings for damages for her injury without that permanent assessment, but that those proceedings would be stayed thereafter.

The conclusion that the appellant appeared to agree with those propositions follows from that letter, the certificate, and the terms of s 262.

The appellant and the respondent’s then solicitors also apparently shared a common, wrong, assumption that the plaintiff could validly begin her proceeding on 13 July 2004, by reason of that conditional damages certificate. That assumption was undoubtedly based on the decision in Green v Suncorp Metway Ltd [2001] 1 Qd R 485, 494 at [58]. But since the applicable provisions of the Act no longer included s 262 or any reference to a conditional damages certificate, that decision was no longer applicable, and s 303 was.

Section 303 provides as follows:

“303****Claimant to have given complying notice of claim or WorkCover to have waived compliance

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

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

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

(ii)WorkCover has waived the claimant’s non-compliance with the requirement of section 280 with or without conditions; or

(iii)the court has made an order under section 304 or 305;

(c) WorkCover has admitted liability, but is claiming contributory liability from the claimant or another party, and the claimant has given WorkCover written notice that the extent of the admission is disputed;

(d)WorkCover has admitted liability but damages can not be agreed.”

The effect of that section was recently remarked on in Hamling v Australia Meat Holdings P/L [2005] QCA 415, and considered by McGill DCJ in the decision in Goerecke v State of Queensland [2004] QDC 273. Applied in accordance with its terms, s 303 prevented the plaintiff commencing a proceeding until six months after an order by a court made under s 305, as was the order here. Mr G Mullins, counsel for the respondent, argued that an order could be made under s 305 which gave leave to commence a proceeding despite non-compliance with s 303. I respectfully disagree; s 305, quoted in the reasons of the Chief Justice, is expressly declared to be subject to s 303; and the power to grant leave given by s 305 is to grant leave to start a proceeding despite non-compliance with s 280, not s 305. In any event, the learned judge who made the s 305 order in this matter was not invited to make an order granting leave despite non-compliance with s 305, and made no reference to that section in the reasons for judgment.

Mr Mullins agreed that had the provisions of s 280A of the Act been strictly complied with, 303 would prevent the plaintiff starting proceedings until at least six months had elapsed after the appellant had waived, pursuant to s 280A of the Act, the plaintiff’s compliance with the requirements of s 280. That section required that before starting a proceeding in a court for damages a claimant must give a notice in the approved form to the self-insured employer, within the period of limitation, and the notice had to include the particulars prescribed in s 74 of the WorkCover Queensland Regulation 1997 (Qld) (“the Regulation”). If the defendant employer did waive, under s 280A, compliance with s 280, and if the plaintiff agreed to comply with the conditions imposed by the defendant for that waiver, s 280A(8) provided that that agreement by the plaintiff to comply with those conditions was taken to satisfy s 308(1)(a)(ii); that section entitled the plaintiff to bring a proceeding for damages after the end of the period of limitation, relying on the plaintiff having given a notice of the claim before it ended, for which claim the defendant had waived compliance with the requirements of s 280, with or without conditions. That proceeding, brought after the end of the limitation period, must be brought within 60 days after the holding of a compulsory conference – s 308(2).

Section 302 provides:

“302 Compliance necessary before starting proceedings

The Claimant may start a proceeding in a court for damages only if the claimant has complied with –

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

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

(c)part 6; and

(d)section 303.”

The effect of s 280, s 280A, s 303, s 305, and s 308 is that if the plaintiff can make good a claim of waiver, or if the defendant is estopped from denying waiver pursuant to s 280A – the waiver having occurred before the end of the period of limitation otherwise applying – the plaintiff can still start a proceeding after the end of that period of limitation, and must start it before 60 days has elapsed after the compulsory conference for the claim is held. Because of s 303, to which s 305 is subject, and because of the provisions of s 302, the plaintiff was not entitled to start her proceedings when she did. For that reason I agree with the Chief Justice that in this case leave could not be given nunc pro tunc to the plaintiff in June 2005 to start a proceeding in July 2004; she could not begin in July 2004 after waiver in May or June 2004, because of s 303.

Waiver or Estoppel?

I also agree with the Chief Justice that the Act expressly allowed the defendant to waive performance by the plaintiff of its s 280 obligations, and also that to construe what occurred as referable to s 280A involves a degree of contrivance and an unduly creative judicial effort. And I agree that the conclusion by the learned trial judge that ANZ had waived the s 280 formalities achieved a fair result. Accordingly I consider one question for the plaintiff is whether she can succeed on a pleading that the defendant is estopped from denying waiver by it of those requirements, that estoppel reflecting the doctrine described by Mason CJ in The Commonwealth v Verwayen (1990) 170 CLR 394 at 413.

The learned Chief Justice there wrote: (omitting reference)

“The result is that it should be accepted that there is but one doctrine of estoppel, which provides that a court of common law or equity may do what is required, but no more, to prevent a person who has relied upon an assumption as to a present, past or future state of affairs (including a legal state of affairs), which assumption the party estopped has induced him to hold, from suffering detriment in reliance upon the assumption as a result of the denial of its correctness. A central element of that doctrine is that there must be a proportionality between the remedy and the detriment which is its purpose to avoid. It would be wholly inequitable and unjust to insist upon a disproportionate making good of the relevant assumption.

The assumption may be one as to a legal as well as to a factual state of affairs. There is simply no reason to restrict the assumption to a factual matter as there was at the time when the rules of estoppel by conduct were evidentiary. It has already been recognized that an equitable estoppel may relate at least to a matter of mixed fact and law.”

The reference in s 280 to an urgent need to start a proceeding is made somewhat misleading by s 302 and s 303. A waiver under s 280A before the end of the limitation period both extends it, by reason of s 308, and prohibits a claim starting before another six months has elapsed. Had s 280A been noticed by the appellant and the respondent’s then solicitors, the relevant application by the plaintiff’s then lawyers to the defendant in mid-April 2004 would have been for a waiver of the need to provide a notice of claim under s 280 before the end of the period of limitation. Complying with s 280 would have required the plaintiff to provide full particulars of the nature and extent of her injury and the degree of permanent impairment she alleged had resulted from the injury (s 74(1)(c)(i) and (ii) of the Regulation). Had the defendant refused a request under s 280A for that waiver, the plaintiff would have had to set about getting the necessary information to complete a notice of claim given before the end of the period of limitation. Because the plaintiff’s then lawyers did not acquaint themselves with s 280A, they asked for a conditional damages certificate pursuant to the (assumed to be in force) s 262, because the plaintiff’s permanent impairment had not been assessed or agreed. The defendant agreed to give that certificate.

It follows that the general effect of the agreement between the appellant and the respondent’s then solicitors, based on their common misunderstanding of the applicable provision, was the same as would have followed from compliance with s 280A by both, and a waiver given pursuant to s 280A. That general effect is that the defendant agreed that the plaintiff need not give it the details of the plaintiff’s injury before the end of the limitation period.

The plaintiff may be able to establish on the hearing of a contested claim that her then lawyers acted on the basis of that agreement or apparent agreement, to her detriment, by not obtaining full details of the extent of her injury before the end of the limitation period. Had that been done, she would have been in a position to give a notice pursuant to s 280 within the period of limitation. She may have an argument that it would be unconscionable for the defendant to resile from the position earlier agreed that details of her injury need not be provided before that limitation period ended. That is, the plaintiff may make a successful argument that the defendant should be estopped from denying that it waived compliance with the requirement of s 280 pursuant to s 280A and s 282(2)(b).

Then there is a question of waiver. Take the example of a self-insured employer, aware of an injury to a claimant who had not made any request pursuant to s 280A for the self insurer to waive compliance with the requirements of s 280, and who wrote to the claimant and advised that the employer would not require s 280 compliance. Assume that the claimant acted on that notification and did not supply a notice of claim before the end of the period of limitation, and assume that the employer then wrote contending the claimant could not start a proceeding for damages, citing s 280(1). (“Before starting a proceeding in a court for damages, a claimant must give notice under this section within the period of limitation …”).

That claimant could not contend that the claimant had complied with the formalities specified in s 280A, which can result in an employer waiving compliance with the requirements of s 280. Mr O'Sullivan, for the appellant, argued on the appeal that no waiver could arise in those circumstances, because waiver or estoppel could not be pleaded against the provisions of a statute. He referred to Beckford Nominees v Shell Co of Australia (1986) 73 ALR 373 at 379; Commonwealth of Australia v Hamilton [1992] 2 Qd R 257 at 267; and Day Ford Pty Ltd v Sciacca [1990] 2 Qd R 209 at 216-217, and the cases cited in those authorities. But since s 280A specifically provides for waiver of the s 280 requirements, or some of them, those particular requirements may be regarded as ones enacted for the benefit of the individual; who will be either WorkCover or a self insured employer. The employer in the circumstances hypothesised might be held to have waived compliance with the requirements of s 280, the waiver being of the variety described by McHugh J in The Commonwealth v Verwayen at CLR 497.

His Honour wrote:

“In my opinion, the true basis of the decisions in these cases is that, where the existence of a statutory right depends upon the fulfilment of a condition precedent, a person entitled to insist on the fulfilment of that condition may dispense with its compliance unless it is enacted for the benefit of the public, and that person will be held to have waived compliance with the condition if he or she knowingly takes or acquiesces in the taking of a subsequent step in the course of procedure laid down by the statute after the time for the other person to fulfil the condition has passed. These cases are also, to a certain extent, anomalous. They should be strictly confined so as to not conflict with the more established doctrines of election, contract and estoppel.”

For the reasons given, I agree with the orders proposed, but consider that the plaintiff is not thereby shut out from eventual success. That is because I also agree with the alternative argument of counsel for the appellant, namely that it would be inappropriate to dispose of the issues in respect of estoppel and waiver without those being properly pleaded, and the relevant facts determined at the trial.

MACKENZIE J: I have had the advantage of reading the reasons of the Chief Justice and Jerrard JA. I agree with the Chief Justice’s reasons and the orders proposed by him and concurred in by Jerrard JA.

That outcome may seem harsh and inconvenient in a case where the decisive difficulty stemmed from a misapprehension by the appellant about the proper procedure in force under a statutory scheme, compounded by the respondent’s solicitors not detecting the problem in time. At best for the respondent, it may result in liability shifting. However, the outcome is unavoidable for the reasons given.