Wilkinson v Stevensam [2006] QCA 88

SUPREME COURT OF QUEENSLAND

CITATION: Wilkinson v Stevensam P/L & Ors [2006] QCA 088

PARTIES: PRISCILLA ROBERTA WILKINSON (plaintiff/respondent) v STEVENSAM PTY LTD ACN 091 891 235 (first defendant/first applicant) SAMANTHA ANN DICK and MARTIN LEONG (second defendant/second applicant)

FILE NO/S: Appeal No 10045 of 2005 DC No 68 of 2004

DIVISION: Court of Appeal

PROCEEDING: Application for leave s 118 DCA (Civil)

ORIGINATING COURT: District Court at Toowoomba

DELIVERED ON: 24 March 2006

DELIVERED AT: Brisbane

HEARING DATE: 2 March 2006

JUDGES: Williams and Keane JJA and McMurdo J Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: Application for leave grantedAppeal allowedDeclaration made below set asideRespondent to pay the applicants' costs of the appeal to be assessed on the standard basis

CATCHWORDS: WORKERS' COMPENSATION - PROCEEDINGS TO OBTAIN COMPENSATION - CLAIM AND DELAY IN MAKING CLAIM - GENERALLY - where respondent claims to have suffered psychiatric anxiety and depression resulting from physical and verbal abuse suffered in her employment - where dispute over when injury-related event "happened" - where legislative amendments led to dispute over which legislative regime applied to the respondent's injury and claim - where learned District Court judge acted without "formal evidence" - where learned District Court judge declared respondent's action to have been "validly commenced" - where applicants sought leave to appeal pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) - whether leave should be granted and whether declaration of learned District Court judge should be set aside / District Court of Queensland Act 1967 (Qld), s 118(3) WorkCover Queensland Act 1996 (Qld), s 262, s 280, s 280A, s 305, s 532, s 588 / Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, cited Bass v Permanent Trustee Company Limited & Ors [1999] HCA 9; (1999) 198 CLR 334, applied Jacobson v Ross [1995] 1 VR 337, applied Rich v CGU Insurance Ltd [2005] HCA 16; (2005) 79 ALJR 856, cited Rigney v Littlehales & Ors [2005] QCA 252; Appeal No 11267 of 2004, 22 July 2005, considered Roberts v Australia and New Zealand Banking Group Limited [2005] QCA 470; Appeal No 5639 of 2005, 16 December 2005, cited

COUNSEL: D O J North SC, with M T O'Sullivan, for the applicants J W Lee for the respondent

SOLICITORS: Bruce Thomas Lawyers for the applicants Keith Scott & Associates for the respondent

WILLIAMS JA: By claim and statement of claim filed in the District Court on 11 August 2004 the respondent commenced a proceeding seeking to recover damages for personal injuries arising out of negligence and/or breach of contract of employment naming the applicants, her employers at the relevant time, as defendants. The proceeding was one which could only lawfully be commenced after there had been compliance with relevant provisions of the WorkCover Queensland Act 1996 (Qld) (“the Act”). WorkCover, who effectively have the conduct of the proceeding on behalf of the applicants, contend that the appropriate pre-trial steps have not been taken and that in consequence the proceeding was liable to be struck-out. That caused the respondent to file an application in the proceeding seeking relevantly the following orders:

“1.A declaration that the Toowoomba District Court proceedings commenced by the applicant by way of claim and statement of claim filed 11 August 2004 have been validly commenced.

2.A declaration pursuant to s 280A of the WorkCover Queensland Act 1996, that the applicant is entitled to bring a proceeding without the need to bring an application under s 305, notwithstanding non-compliance with the pre-proceedings requirements of s 280 of the WorkCover Queensland Act 1996.”

Ultimately Brabazon DCJ made the following orders on 28 October 2005:

“1.A declaration be made that the Toowoomba District Court proceedings 68/2004 have been [validly] commenced.

2.There is no order as to costs.”

The applicants subsequently sought leave of this Court to appeal against the whole of that judgment asserting that the learned primary judge erred in law in making the declaration.

The background facts are somewhat unusual, and the case again raises problems created by the highly regulated regime which the Act imposes on proceedings between worker and employer.

The respondent commenced working as a chef at the Marco Polo Restaurant in Toowoomba on 24 April 2001. She alleges that between then and 21 October 2001 when that employment ceased she was subjected to physical and verbal abuse by Leong, one of her employers, and suffered an injury initially described as “stressed, nervous, unable to sleep.” In her statement of claim the injury was described as “psychiatric”. Paragraph 4 of the statement of claim was in the following terms:

“As a result of the stress from physical and verbal abuse suffered by the Plaintiff in her employment from 24 April 2001, the plaintiff suffered psychiatric anxiety and depression with the symptoms emerging in August 2001 ('the accident').”

It is clear from all the material that the respondent contends that the relevant conduct constituting the physical and verbal abuse commenced from the date she began work, namely 24 April 2001, and continued until symptoms emerged in August 2001, and she consulted a doctor on 12 October 2001.

The legal problems with which the court is now concerned essentially arise because the Act was amended as and from 1 July 2001, which was during the period of employment; the conduct alleged to cause the injury sustained by the respondent straddled 1 July 2001. Up until that date the Act as set out in Reprint No. 4 applied, and after that date the Act as set out in Reprint No. 5 applied. It will be necessary to refer to the relevant changes made to the legislation later.

By application signed 23 November 2001 the respondent sought compensation pursuant to the Act; it would appear that application was completed without legal advice. WorkCover paid compensation pursuant to the Act, but full details of that are not included in the material.

It was not until 14 January 2003 that the respondent first instructed her solicitor with respect to her injury. In an affidavit the solicitor says that thereafter he “commenced investigating making a common law damages claim”. However, nothing of relevance appears to have been done until a letter was written to WorkCover on 15 June 2004. It should be noted that by that date the amendments to the legislation which give rise to the present problem had been in force for almost 3 years; it could not be said that the solicitor was not aware of the relevant law as it stood as at June 2004.

The terms of the letter of 15 June 2004 were as follows:

“We refer to the above matter. Please provide us with a Conditional Damages Certificate for an injury over a period of time between April, 2001 and October, 2001 with the major symptoms emerging in August, 2001.”

The legislation prior to 1 July 2001 provided in s 262 for a Conditional Damages Certificate. That section provided:

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

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

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.

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

WorkCover responded by issuing a Conditional Damages Certificate dated 15 July 2004. Relevantly the conditional certificate provided:

“2.Statutory claim details

Date of injury: Over a period of time from April 2001 to June 2001.

Injury/injuries: Adjustment Disorder with Mixed Anxiety and Depressed Mood.

Certificate details

I have issued this Conditional Damages Certificate under Section 262 of the WorkCover Queensland Act 1996 (the Act) as:

you have an urgent need to bring proceedings for damages;

WorkCover allowed your application for compensation for the injury;

your permanent impairment from the injury has not been assessed under the Act.

This Conditional Damages Certificate enables you to start a proceeding for damages for the injury. This proceeding is stayed until:

WorkCover makes the certificate unconditional; and

You comply with parts 5 and 6 of Chapter 5 of the Act.”

Although the solicitor’s letter referred to a period April to October 2001 the certificate only referred to a period April to June 2001 because WorkCover was then of the view that it could not issue a Conditional Damages Certificate extending beyond 30 June 2001 when the legislation was amended to delete s 262 as set out above. That view is incorrect. If Reprint 4 applies because of the operation of s 588 (considered later herein) such Certificate could refer to a date after 1 July 2001. Though the solicitor's letter did not give particulars of the urgency, it would appear that WorkCover was satisfied of that because the three year period would have expired probably some time in August 2004.

Subsequently WorkCover assessed the respondent’s degree of permanent impairment and issued a notice of assessment nominating an injury described as “adjustment disorder with mixed anxiety and depressed mood (0%)”.

As already noted the District Court proceedings were commenced on 11 August 2004. WorkCover then on 24 November 2004 issued an unconditional Damages Certificate pursuant to s 262.

Under cover of a letter dated 6 December 2004 the respondent’s solicitors forwarded a Notice of Claim for Damages in the form required by s 280 of the Act. The form was actually dated 29 June 2004, but no explanation was given as to why it was not forwarded until December.

During the Minister’s Second Reading Speech on the amending legislation which came into force on 1 July 2001 it was said that new procedures were being introduced “to simplify the pre-proceedings processes for common law claims to ensure the speedy resolution of claims. This should greatly assist in minimising costs for all parties – workers, employers, WorkCover and self-insurers.” Undoubtedly against that background the requirement that a Conditional Damages Certificate be obtained was deleted and replaced by a simpler procedure to be found in s 280A of the Act. So far as is relevant for present purposes it provided:

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

(2)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 proceedings; and

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

(3)…

(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 in sub-section (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.”

Section 280 is the section which provides that, before a proceeding may be started in a court for damages, a claimant must give a notice of claim within the limitation period, such notice containing the particulars specified by that section. The expression “notice of claim” is defined in Schedule 3 as meaning a notice under s 280. In other words a claimant seeking to rely on s 280A must give a notice pursuant to s 280 but, of course, it would not ordinarily provide the full particulars required by that section, but would set out the reasons for the urgency and ask WorkCover to waive strict compliance with s 280 on certain conditions. That such is the appropriate construction of the section is made clear by a consideration of the approved form for a notice under s 280. It contains on the front page, under a clear heading, a section to be utilised where the notice includes an application pursuant to s 280A.

Obviously s 280A applies where the claim is in respect of an injury sustained after 1 July 2001. There can be no confusion where a single incident caused the injury on a date after 1 July 2001. But what of the position where the injury was allegedly caused by a series of incidents some of which occurred before, and some after, 1 July 2001? That is the situation here.

That called into play the transitional provision included in the amending legislation which came into force on 1 July 2001. Section 588 of the Act is headed “Injury before 1 July 2001” and is then in the following terms:

“The provisions of this Act, as in force immediately before 1 July 2001, continue to apply in relation to an injury resulting to a worker from an event happening before 1 July 2001 as if the amending Act had not been enacted.”

By s 14(2) of the Acts Interpretation Act 1954 (Qld) the heading to a section is part of the Act. That means that both the term “injury” in the heading and the term “event” in the body of the section are relevant to its proper construction. Section 33 of the Act defines “event” as “anything that results in injury … to a worker”; by sub-section (2) it includes “continuous or repeated exposure to substantially the same conditions that results in an injury to a worker.” Then s 34 defines “injury” as meaning “personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.” There is a further provision in sub-section (3) which expands the meaning of “injury” to include “an aggravation of … a personal injury”.

It is clear from s 588 that if the claim is in respect of an injury sustained prior to 1 July 2001 the provisions of the Act as set out in Reprint 4 apply. In the simple case where a single incident caused the injury on a date before 1 July 2001 there would be no confusion – the claimant had to comply with the provisions found in Reprint 4 and where there was an urgent need to commence proceedings there would have to be compliance with s 262.

It should be obvious by now that the problem faced by the respondent in the present case is that she alleges her injury resulted from a series of incidents which occurred shortly before and shortly after 1 July 2001. She has complied with the requirements of s 262 of the Act as it was prior to 1 July 2001, and has commenced proceedings arguably within the limitation period from when the cause of action arose.

The concern of WorkCover, being the concern which has given rise to this appeal, is as to the position if, at the conclusion of the proceeding already commenced in the District Court, it is found as a fact that the critical event resulting in the injury occurred after 1 July 2004. In that circumstance WorkCover contends that it would be irrelevant that the respondent had complied with the pre-trial provisions of Reprint 4; as in those circumstances the injury was sustained after 1 July 2004 there had to be compliance with the pre-proceeding requirements of Reprint 5 before proceedings seeking recovery of damages for that injury could be commenced. That had not been done and it is now too late for the respondent to take any steps to rectify the situation.

Having said that, it becomes immediately obvious that factual findings will be of critical importance in determining the legal position of the parties. The extreme positions are relatively obvious. If there is a finding that the injury was sustained prior to 1 July 2001 the existing proceeding is valid and the respondent would be entitled to judgment. If the finding was that the injury was sustained after 1 July 2001 the applicants would be entitled to have the proceeding struck-out because there had not been compliance with the pre-proceeding requirements of the legislation.

What if the finding was that the injury sustained by the respondent resulted from a series of incidents some of which occurred prior to 1 July 2001 and some after? The answer, in my opinion, would depend upon the proper construction of s 588. In those circumstances could it be said that the injury was one “resulting to a worker from an event happening before 1 July 2001”. As “event” is given an extended meaning by s 33(2) of the Act, such finding of fact could well satisfy s 588 so that Reprint 4 applied and the respondent would be entitled to judgment. The final answer would, of course, have to depend upon the precise findings of fact made with respect to the injury.

A more complicated situation would be where some identifiable injury was sustained resulting from an incident prior to 1 July 2001, but there was an identifiable aggravation of that injury resulting from an incident which occurred after that date. As presently advised, I am of the view that the legal ramifications of such a finding would be largely dependent upon the precise findings of fact made with respect to the initial injury and the aggravation.

It follows from that reasoning that the declaration under appeal ought not have been made. As it stands it would have the consequence of permitting the respondent to recover judgment in the proceeding regardless of the findings of fact with respect to the respondent’s injury and when it was sustained. I have in these reasons not referred to complications which might arise if a limitation defence was pleaded, but it was obvious that limitation issues could become relevant depending upon findings of fact made.

For all of those reasons the declaration must be set aside. It should be noted that though the second paragraph of the application states the declaration is being sought "pursuant to s 280A" that section does not confer jurisdiction on the court to make such a declaration in circumstances such as exist here. I have given consideration to whether a declaration in some more limited form could be made, but as these reasons indicate the possible factual variations are such that it is impossible to formulate a meaningful declaration.

In the light of these reasons it is obvious that the proceeding in the District Court already commenced can go ahead but whether or not it would result in a judgment in favour of the respondent will be dependant upon findings of fact made on the evidence presented.

The applicants strenuously opposed the application at first instance and in consequence they should have costs.

The orders of the court should therefore be:

appeal allowed with costs;

set aside the declaration and order made at first instance and order that the application be dismissed with costs.

KEANE JA: On 28 October 2005, the learned primary judge declared that the action commenced by Ms Wilkinson ("the plaintiff") in the District Court of Toowoomba ("the action") had been "validly commenced". The defendants in the action seek leave to appeal against that decision pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld).

Although the defendants' application was for leave to appeal, because of the interlocutory character of the order made by the learned primary judge, the court heard full argument on the issues of substance raised by the application. It is convenient to begin a consideration of those issues with a summary of the factual background and the terms of the relevant legislation before turning to consider the applicant's attack upon the judgment.

Chronology

The plaintiff's action was commenced on 11 August 2004. The plaintiff claims damages for personal injuries suffered by her as a result of breach of duty by the defendants, her employers. The plaintiff alleges in her statement of claim that "as a result of stress from physical and verbal abuse suffered by the plaintiff in her employment from the 24th April 2001, the plaintiff suffered psychiatric anxiety and depression with symptoms emerging in August 2001".

On 15 June 2004, the plaintiff, through her solicitor, sought from the employer's insurer, WorkCover Queensland ("WorkCover"), a "Conditional Damages Certificate for an injury over a period of time between April 2001 and October 2001, with the major symptoms emerging in August 2001".

On 15 July 2004, WorkCover furnished the plaintiff with a Conditional Damages Certificate issued under s 262 of the WorkCover Queensland Act 1996 (Qld) ("the Act"). That certificate was expressed to be for an injury "over a period of time from April 2001 to June 2001". It referred to an injury described as "Adjustment Disorder with Mixed Anxiety and Depressed Mood". It also contained the following details:

"I have issued this Conditional Damages Certificate under section 262 of the WorkCover Queensland Act 1996 (the Act) as:

you have an urgent need to bring proceedings for damages

WorkCover allowed your application for compensation for the injury; and

your permanent impairment from the injury has not been assessed under the Act.

This Conditional Damages Certificate enables you to start a proceeding for damages for the injury. This proceeding is stayed until:

WorkCover makes the certificate unconditional; and

you comply with parts 5 and 6 of Chapter 5 of the Act."

It appears that the plaintiff's solicitor did not advert to the circumstance that the certificate referred to an injury "over a period of time" that ceased in June 2001.¹ It also appears that the reason why the certificate was so expressed is that WorkCover took the view that, because of amendments to the Act which took affect on 1 July 2001, it was not competent for WorkCover to issue damages certificates to claimants in respect of injuries which post-date 1 July 2001.²

In December 2004, the plaintiff delivered to WorkCover a notice of claim for damages under s 280 of the Act. That notice was in the standard form approved pursuant to s 532 of the Act and the Regulation made there under. Many of the questions in the form were not answered. Thus the notice did not include the particulars prescribed under the regulation as required by s 280(3) of the Act. Most importantly for present purposes, the form provided for compilation by a claimant a request that, pursuant to s 280A, WorkCover waive the requirements of s 280 of the Act. This request was not completed by the plaintiff. Nor did the plaintiff complete the section of the form which invited the claimant to "State the reasons for the urgency and the need to start the proceedings." This latter omission may be intelligible by reason of the circumstance that proceedings had been begun the previous August.

The December 2004 form did contain an annexure in which it was asserted that from 24 April 2001 when the plaintiff's employment commenced, until October 2001, she was subjected to verbal abuse in her place of employment by a fellow employee. The plaintiff also said that on occasions she was bitten on the upper arm. It was said that "each working day was filled with stress", and that: "She felt symptoms of her injuries in or about August 2001 and sought medical advice on 12 October 2001."

On 28 January 2005, WorkCover wrote to the plaintiff's solicitors asserting, inter alia, that the plaintiff's claim for damages is statute barred. Whether or not that contention is well made, the focus of present concern is the further assertion in WorkCover's letter that the plaintiff's claim was fatally flawed at least insofar as it related to an injury suffered after 1 July 2001. That was said to be because the Conditional Damages Certificate which had been provided by WorkCover related only to an injury which occurred prior to 1 July 2001, and the plaintiff had not complied with s 280 of the Act in respect of any injury suffered by the plaintiff after 1 July 2001 and WorkCover had neither waived nor been requested to waive non-compliance with s 280 of the Act. In short, the point raised by WorkCover was that the plaintiff was not entitled to commence proceedings for damages in respect of any injury alleged to have been suffered after 1 July 2001 because she had not complied with the statutory pre-conditions for the commencement of proceedings in respect of such an injury.

The legislation

Under the Act, prior to the amendments wrought by the WorkCover Queensland Amendment Act 2001 (Qld), it was necessary for a "worker" who wished to seek damages against his or her employer to comply with a range of requirements which included the obtaining of a "notice of assessment" from WorkCover. Section 262(2) in its then form authorised WorkCover or a self-insurer to issue a "conditional damages certificate" to a worker whose injury had not been assessed where there was an urgent need for proceedings to be commenced. Where such a certificate was issued proceedings might be commenced, but they would then be stayed until WorkCover or the self-insurer made the certificate unconditional, and the worker had complied with Pt 5 and Pt 6 of Chapter 5 of the Act. The WorkCover Queensland Amendment Act removed the provision of the Act relating to conditional damages certificates and, in lieu thereof, provided, inter alia, by s 280A that WorkCover might waive non-compliance with the requirements of s 280 of the Act. Section 280A provides a means of avoiding the need for an application for leave to proceed under s 305 of the Act.

The effect of s 301 and s 302 of the Act is to limit the entitlement of a claimant to commence proceedings for damages by requiring compliance with, inter alia, s 280 of the Act. Section 280 of the Act requires the giving of a notice under that section within the period of limitation prescribed by the Limitation of Actions Act 1974 (Qld). As I have mentioned, s 305 provides for the grant of leave to a claimant to bring proceedings despite non-compliance with s 280 of the Act. It may well be that the language of the section should be taken to indicate that a grant of leave may be made under s 305 only before the expiration of the relevant limitation period,³ but whether or not this is so, the decision of this Court in Roberts v Australia and New Zealand Banking Group Limited⁴ establishes that s 305 of the Act does not authorise the grant of leave retrospectively to regularise proceedings which have been commenced and where the limitation period has expired.

Whether it was necessary for the plaintiff to comply with the requirements of s 280 of the Act in order lawfully to commence her action in August 2004, or whether the conditional damages certificate she had obtained was a sufficient warrant for seeking damages by commencing her action, may depend on the proper construction of s 588 of the Act, which was inserted by amendment in 2001. Section 588 provided relevantly as follows:

"The provisions of this Act, as in force immediately before 1 July 2001, continue to apply in relation to an injury resulting to a worker from an event happening before 1 July 2001 as if the amending Act had not been enacted."

Section 33(1) of the Act defined the word "event" as "anything that results in injury … to a worker". Section 33(2) of the Act provided that "an event includes continuous or repeated exposure to substantially the same conditions that results in an injury to a worker".

The judgment

Before the learned primary judge, the plaintiff contended that the "event" which resulted in the plaintiff's injury was continuous or repeated exposure to abusive behaviour at work. The learned primary judge seems to have proceeded on the footing, suggested by the plaintiff's statement of claim, that this stressful behaviour spanned both sides of the 1 July 2001 line.⁵

The learned primary judge said:

"Section 588 refers to an event happening before 1 July 2001. As an event may extend over a period of time, that expression could mean an event that starts and finishes before 1 July 2001. If it does not include all of an event which starts to happen before 1 July 2001, but finishes after that date, then that would have the consequence that two different procedural regimes would apply to the same injury –one before 1 July 2001, and the other after 1 July 2001. One injury, or multiple injuries of the same kind, would have to be split into two claims. Each would be started in a different way. The first would require a conditional damages certificate. The second would require a notice under s 280A. Each would be subject to a separate assessment. (There has already been a separate assessment here, up to 30 June 2001.)

Parliament cannot have intended such an unworkable result. If an event starts to happen before 1 July 2001, then the transitional provision applies to it, even though it may finish after 1 July 2001. The amending act will not apply."

It may be accepted that the possibility that a plaintiff might have to comply with two regimes would be inconvenient. It is hyperbole, however, to say that such a result would be "unworkable". Further, the (unidentified) difficulties of complying with two regimes should not be exaggerated. To say this is not to say that I disagree with the construction which his Honour has put upon s 588 of the Act. Whether this case was one in which the true construction of s 588 was ripe for determination is another issue.

At this point, it may be noted here that s 588 refers in terms to "injuries" and "events", rather than to "claims" about injuries and events. That language would tend to suggest that the operation of s 588 depends on the facts, that is to say the facts as the court finds them to be, not on what a party claims about the facts.⁶

On this view of s 588, whether the event which resulted in the injury of which symptoms emerged in August 2001 had "happened" prior to 1 July 2001 is a matter of fact, or perhaps an issue of mixed fact and law. To the extent that it is an issue of fact, it inevitably falls to be resolved by reference to evidence which would necessarily include evidence given by the parties. It might also include evidence of psychiatric opinion. None of the parties gave any evidence on the application and, as his Honour noted: "None of the medical reports are before the court at the present time."⁷

Having regard to the broad unparticularised assertion in the plaintiff's statement of claim, there are a number of possible outcomes in relation to the issue of fact on which the operation of s 588 of the Act depends. First, of course, the evidence must establish the fact that the plaintiff suffered an injury. If the evidence were to establish the fact that the injury had been suffered by 30 June 2001, it would be impossible sensibly to say that the event which resulted in the injury had not happened by that date: the cause must logically precede the consequence. The pre-July 2001 regime alone would govern the progress of the plaintiff's claim in respect of that injury.

Alternatively, the evidence might establish that any injury suffered by the plaintiff had not been suffered by 30 June 2001 but was suffered thereafter. Then two possibilities arise. The event which resulted in the injury could have happened, either entirely during the period of the new regime, or it could have happened during the operation of both old and new regimes. If the evidence establishes the second of these possibilities, the question of statutory construction would arise. That question would be whether s 588 operates to consign an injury suffered as a result of an event which occurred during the operation of both regimes to the exclusive control of the old regime, or whether both regimes must be complied with, or, indeed, whether the new regime alone is applicable. That is the question which the learned primary judge has answered in favour of the first of these candidates.

It is also possible that the evidence might establish discrete events occurring on either side of 1 July 2001 but resulting in several injuries. In this regard, it must be kept in mind that the aggravation of an injury is itself an "injury" by virtue of s 34(3)(b) of the Act. There can be no doubt that if this were the outcome of the fact finding process, a plaintiff would have to comply with both regimes if he or she wished to seek damages for all of the injuries suffered as a result of events occurring on each side of 1 July 2001. It is also possible that the evidence might establish that there were discrete events happening on either side of 1 July 2001 with only one injury resulting from the totality of these separate events. Once again, there can be no doubt that, in such a case, a plaintiff would need to comply with both regimes if he or she wished to seek damages for that injury. It should be noted that these last two possibilities may give rise to some inconvenience for claimants, and a degree of duplication, but the effect of the legislation in these hypothetical scenarios cannot be doubted. I mention this merely because the situation of the plaintiff in the present case is no more inconvenient.

The important point to emerge from the identification of the possible outcomes of the issue of fact on which the issue of construction of s 588 of the Act depends, is that until the facts are found the issue of construction is hypothetical. In the words of the joint judgment in Bass v Permanent Trustee Company Limited & Ors:⁸

"As the answers given by the Full Court and the declaration it made were not based on facts, found or agreed, they were purely hypothetical. At best, the answers do no more than declare that the law dictates a particular result when certain facts in the material or pleadings are established. What those facts are is not stated, nor can they be identified with any precision. They may be all or some only of the facts. What facts are determinative of the legal issue involved in the question asked is left open. Such a result cannot assist the efficient administration of justice."

It is not entirely clear whether the learned primary judge purported to make findings of fact. He acted without what he described as "formal evidence" on the point.⁹ His Honour said:¹⁰ "The court has to act on the information in [the plaintiff's] written claims, on the assumption that those claims are valid." One may pause here to observe that this proposition is not self-evidently true. No statutory imperative for the court to act on the information in the plaintiff's written claims is identified by his Honour, and none is apparent to me from a study of the Act. There is no warrant for assuming, contrary to the defendants' entitlement to natural justice, that the plaintiff's claims are true. Further, the operation of s 588 of the Act seems, on the face of it, to depend upon the facts relating to the injury, not the terms of the plaintiff's claim. In any event, as his Honour later said:¹¹ "… the true facts are unclear. It is obviously impossible to always be certain about the facts, when preliminary procedures are underway."

In Bass v Permanent Trustee Company Limited & Ors,¹² the majority of the High Court referred with approval to the observations of Brooking J in Jacobson v Ross¹³ where his Honour said:

"Care must be taken to ensure that, in one way or another, all the facts that are on any fairly arguable view relevant to the determination of the question are ascertainable ... as facts assumed to be correct for the purposes of the preliminary determination, or as facts which both sides accept as correct, or as facts which are to be judicially determined."

His Honour concluded, on the basis of the information in the plaintiff's statement of claim and written claim forms, that s 588 operated to consign this case to regulation exclusively by the old regime. His Honour arrived at the conclusion on the basis that s 588 cannot be understood to require a plaintiff to comply with the requirements of both the old and new regimes where the injury is a consequence of an event which straddles the 1 July 2001 deadline. As has been said, his Honour concluded that: "if an event starts to happen before 1 July 2001, then the transitional provision applies to it, even though it may finish after 1 July 2001. The amending Act will not apply."¹⁴

That conclusion may well be correct. There is support for it in the text of the provision. The transitional position applies to a case where the injury has resulted from an event which is "happening before 1 July 2001": it is not necessary that the event be one which "has happened". But even if that is so, the determination of the issue of statutory construction, and the making of the declaration, was hypothetical in that his Honour assumed the correctness of assertions that the plaintiff had suffered an injury, that the injury was the result of only one "event", that this one event was in fact happening during the operation of both regimes and that this one event produced only one injury. Because I consider that this case should be decided on the basis that his Honour should not have determined the case before him on this hypothetical basis, I do not propose to express a final opinion on the true construction of s 588 of the Act.

The defendants' argument

The defendants contend that the issue tendered by the plaintiff for decision by the learned primary judge should not have been determined by his Honour. In my respectful opinion, that submission should be accepted, whether his Honour's declaration is to be understood as a final declaration of the parties' rights in relation to the validity of the proceedings or as no more than a statement that the failure to comply with s 280 of the Act is no impediment to the continued prosecution of the action which is on foot. The need to consider each of these two possible views of the effect of the declaration arises because of the ambiguity in the "validity" of the commencement of the proceedings declared by the learned primary judge.

As to the first of the possible views of the declaration, in Rich v CGU Insurance Ltd, Gleeson CJ, McHugh and Gummow JJ said:¹⁵

"However, the general principle is that issues raised in proceedings are to be determined in a summary way only in the clearest of cases. In Agar v Hyde ((2000) 201 CLR 552 at 575 - 576 [57]), Gaudron, McHugh, Gummow and Hayne JJ said:

'Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 per Dixon J; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130 per Barwick CJ), but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.'"

This Court has recently applied this statement of principle in Rigney v Littlehales & Ors.¹⁶ The learned primary judge regarded this case as distinguishable on the basis that "this case is not like Rigney v Littlehales & Ors, where a declaration finally decided a factual issue which should have been left for the trial".¹⁷ But in this case, the learned primary judge has (to the extent that his declaration means that the defendants may no longer contend that the plaintiff is not entitled to seek damages in respect of any injury resulting from an event which happened after 1 July 2001, or which resulted from a combination of events before and after that date) purported finally to decide the issues of whether and when the plaintiff suffered an injury as a result of the defendants' alleged breaches of duty. On that view, his Honour's order has finally declared the parties' rights. In that regard, it is certainly the case that his Honour's order is not expressed to be "provisional" in nature, or as effective only to enable the plaintiff's case to come to trial. On this view, the declaration has finally determined against the defendants their contention that the proceedings are unsustainable in relation to any injury suffered after 1 July 2001. And all this has happened without a sufficient factual basis, and, indeed, without the evidence necessary to establish the facts.

On another view, his Honour's declaration may be said to mean no more than that the plaintiff's claim, as presently formulated, is one which is not presently susceptible of being struck out insofar as it asserts an entitlement to damages for any injury being an injury resulting from "continuous or repeated" abusive conduct which began prior to 1 July 2001. On that view, his Honour's declaration, viz, that the "plaintiff's action has been validly commenced", must be understood as having a much more limited effect than its terms would suggest in that it is to be understood as reserving to the defendants the ability to argue that the plaintiff is not entitled to seek damages for any injury resulting in part or whole from an event which happened only after 1 July 2001. On this view, far from having real utility, the declaration is apt to mislead. Further, this view depends on accepting that s 588 is concerned with assertions or claims about an injury rather than the facts of the injury. That proposition I am unable to accept.

While the plaintiff's concern to resolve a question mark over the viability of her action, and his Honour's concern to resolve a dispute about a technical issue that was somewhat (but not entirely) removed from the merits of the case as between the plaintiff and her employer are both understandable, the determination of the issue was hypothetical and premature.¹⁸

His Honour's determination was not made by reference to a concrete factual situation established either by evidence or agreement. It is, therefore, not the kind of determination made in the exercise of the court's jurisdiction to declare rights. As Mason CJ, Dawson, Toohey and Gaudron JJ said in Ainsworth v Criminal Justice Commission:¹⁹ "… declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions".

Further, it is not the kind of summary determination expressly contemplated by s 304 and s 305 of the Act. These sections provide for summary determination of issues necessary to facilitate the progress of claims towards a trial. The very terms of these provisions suggest the limits of the role of the courts in relation to the resolution of disputes about the processing of claims through Chapter 5 of the Act.

Questions of natural justice also arise. The learned primary judge held that it was open to him to make the declaration which he made because WorkCover, on behalf of the defendants in the action, had ample opportunity to lead evidence upon the plaintiff's application, but had failed to do so.²⁰ This approach fails to appreciate that the issues which were required to be resolved could only be resolved by reference at least to the plaintiff's evidence. She had not given evidence of the circumstances of her alleged injury. Impatience with the technicalities of the legislation, and zeal to hasten a determination of the case on its merits, do not justify the course taken by his Honour.

It should also be noted that the learned trial judge went on to conclude, by reference to the "surrounding facts",²¹ that the conditional damages certificate was "not limited to an injury happening up to 30 June 2001".²² His Honour held:²³

"The certificate then goes on to describe the injury as an 'adjustment disorder with mixed anxiety and depressed mood'. That can only be a reference to psychiatric difficulties that arose after August 2001, when she noticed the first symptoms. No part of her claim indicated any injury before 30 June. Before that date, there was nothing to be assessed."

This passage puts an unsustainable gloss on the words of the certificate, in that it elides the actual description of the injury which appears in the certificate, and substitutes something like "the injury in respect of which you seek to claim". However this may be, his Honour's conclusion is not a separate answer to the plaintiff's non-compliance with s 280 of the Act in respect of any injury which was suffered either as the result of an event which happened after 1 July 2001 or as the result of the operation of events which occurred both before and after 1 July 2001.

In my respectful opinion, the declaration made by his Honour should be set aside. The rights of the parties should be determined at a trial at which the facts necessary to the resolution of all issues on the basis of all the admissible evidence which the parties choose to adduce.

The plaintiff's contention

The plaintiff seeks to sustain the judgment by reliance on doctrines of waiver and estoppel. The plaintiff's entitlement to proceed with her action depends on whether she has complied with the requirements of the statute. The scope for the operation of doctrines of waiver and estoppel is necessarily limited to the extent that it exists at all.²⁴

But even if these doctrines may be invoked, whether they apply in the plaintiff's favour in the facts of this case must depend upon the evidence in the case. The evidence has not yet been given. For this Court to seek to sustain the decision below on the basis suggested by the plaintiff would involve this Court in the same error committed by the learned trial judge. That may be said to be fortunate for the plaintiff because of the absence before this Court of any evidence that the plaintiff acted in reliance upon any representation made by WorkCover on behalf of the defendants or any erroneous understanding of matters of fact for which WorkCover on behalf of the defendants was responsible.²⁵

Conclusion and orders

The applicant has been wrongly deprived of an arguable answer to the plaintiff's claim without the trial to which it is entitled in that regard. The case is one which is appropriate for the grant of leave under s 118(3) of the District Court of Queensland Act 1967 (Qld).²⁶

The application for leave should be granted. The appeal should be allowed. The declaration made below should be set aside. In my view, no further order is either necessary or desirable.

The respondent should pay the applicants' costs of the appeal to be assessed on the standard basis.

McMURDO J: I agree with Keane JA and, save for one point, with Williams JA.

It concerns the transitional provision, s 588 of the Act. The text of the section distinguishes between events according to whether an event was happening before 1 July 2001. Yet it is headed “Injury before 1 July 2001”. Williams JA is of the view that the section distinguishes between injuries, not events which cause them. The text of the section read with the heading seems to assume that there is no difference. But there is a difference in principle although its practical operation will be comparatively rare. In my view, the unambiguous words of the text should be preferred. The section should be understood as distinguishing between events, as both Keane JA and the learned primary judge have read it.

Footnotes

1. [2005] QDC 339 at [9]. ↩

2. [2005] QDC 339 at [19] and [24]. ↩

3. Roberts v Australia and New Zealand Banking Group Limited [2005] QCA 470 at [31]. ↩

4. [2005] QCA 470 at [28] - [38]. ↩

5. [2005] QDC 339 at [27] - [31]. ↩

6. Cf Civil Liability Act 2003 (Qld) s 4 and s 5 where the statutory regime applies to "claims". ↩

7. [2005] QDC 339 at [32]. ↩

8. (1999) 198 CLR 334 at 357 [49]. ↩

9. [2005] QDC 339 at [32]. ↩

10. [2005] QDC 339 at [32]. ↩

11. [2005] QDC 339 at [34]. ↩

12. (1999) 198 CLR 334 at 358 [53]. ↩

13. [1995] 1 VR 337 at 341. ↩

14. [2005] QDC 339 at [31]. ↩