Zischke v Mayvista Pty Ltd T/As Macleay Island General Store [2012] QDC 335

[3] On 3 July 2012, the defendant filed its notice of intention to defend and defence. For the purposes of this application, the defence pleaded:[1]

"... that on 25 January 2012, under s 292 of the Workers' Compensation and Rehabilitation Act 2003 (Qld), the plaintiff, by his lawyers, made an offer to settle the cause of action in respect of the second incident, in the sum of $15,000 clear of the statutory refund under the said Act and inclusive of all costs and outlays and other statutory refunds;

... that by letter dated 7 February 2012 the plaintiff, by his lawyers, WorkCover Queensland (to whom the lastmentioned offer was made in respect of the cause of action against the defendant and on its behalf) accepted the plaintiff's said offer;

... that, by the said exchange of offer and acceptance, any cause of action enjoyed by the plaintiff in respect of the second incident (namely that arising from an incident which occurred on 24 February 2010) was compromised, and no right of action under this or any proceeding existed thereafter to be available by the plaintiff."

[4] In paragraph 10 of the reply to the defence, it was relevantly pleaded:

"(a) Admits that his then solicitors made an offer to settle the second incident for the sum of $15,000;

(b) Denies that he was aware of, authorised or gave instructions to make such an offer;

(c) Admits that WorkCover Queensland indicated its acceptance of the offer by way of letter dated 7 February 2012.

(d) Denies that the said offer and acceptance constitutes a valid and/or enforceable compromise of any cause of action in respect of the second incident on the basis that:

(i) at no stage prior to the alleged compromises did the defendant communicate to the plaintiff that the plaintiff would be required to execute a discharge in relation to any cause of action in respect of the second incident;

(ii) at no stage has the plaintiff executed a discharge in relation to any cause of action in respect of the second incident;

(iii) the alleged compromise does not comply with the requirements of s 293 of the Workers' Compensation and Rehabilitation Act 2003; and

(iv) the plaintiff did not authorise or give instructions to make the offer or to compromise the action in respect of the second incident." (the authority issue)

[5] Issue was taken to the allegations raised in the plaintiff's reply in the rejoinder of the defendant filed 10 September 2012.

[6] The relief sought by the defendant in this application is essentially a declaration to the effect that an enforceable settlement or compromise of an action under s 292 and s 293 of the Act does not require the execution of discharge for the claim.[2] The plaintiff's primary position is that in all the circumstances surrounding this case, the application was not one that ought be dealt with under r 483 of the UCPR. The plaintiff's alternate position was that if the matter was to be decided under r 483 it ought to be determined against the defendant as no concluded settlement of the action as envisaged by the Act had been reached.

"483 Order for decision and statement of case for opinion

(1) The court may make an order for the decision by the court of a question separately from another question, whether before, at, or after the trial or continuation of the trial of the proceeding.

If a question is decided under this part, the court may, subject to rule 475, make the order, grant the relief and give the directions that the nature of the case requires.

The court may, in relation to a decision of a question under this part, as the nature of the case requires -

(a) dismiss the proceeding or the whole or part of a claim for relief in the proceeding; or

(b) give judgment, including a declaratory judgment; or

(a) set out the question or questions to be decided; and

(b) be divided into paragraphs numbered consecutively."

[8] Sections 292 and 293 of the Act relevantly provide:

"292 Parties to make written final offers if claim not settled at compulsory conference

(2) If a claim is not settled at a compulsory conference, each party that has legal capacity to settle the claim must ensure that it makes a written final offer or written final offers at the conference to another or other parties at the conference that would dispose of the claim if the offer or offers were accepted. (emphasis added)

If a claim or contribution claim is settled before the start of a court proceeding, the parties to the settlement must sign a discharge for the claim." (emphasis added)

[9] For reasons discussed below, it is also necessary to consider s 294 and 300 of the predecessor to the Act, the WorkCover Queensland Act 1996 (the 'WQA'). Section 294 of the WQA did not contain a provision in similar terms to that of s 292(2) of the subject Act. For all intents and purposes, s 300 of the WCA was materially the same as s 293 of the subject Act.

[10] I consider, with respect, that the arguments of the defendant can be summarised as follows:

1. First, as the application only involves the construction of a piece of the State's legislation, it is one properly within the scope and operation of r 483.

2. Second, that on a proper construction of ss 292 and 293 of the Act, it is clear that the legislature intended that upon the acceptance of a written final offer pursuant to s 292 of the Act the action was compromised and at an end and that the signing of a discharge was little more, in effect, than a condition subsequent.

3. Third, that the decision of Margaret Wilson J in Bishop v Woolworths Limited[3] was not determinative of the matter because:

(a) Material changes to the legislation had occurred since that case was decided; and

(b) The relevant discussion of the Act's predecessor was, in context, strictly obiter.

[11] It was argued on behalf of the defendant that:[4]

"First, deciding the application, one way or another, will determine whether it is necessary for Trilby (the plaintiff's former solicitors) to be joined as a party or separately sued for damages, by the plaintiff upon a claim for professional negligence, and by WorkCover and the defendant upon a claim for breach of warranty of authority (if there is a compromise joinder required, if not no joinder is required). (the authority issue)

Second, on the proper construction of the WCR Act as applicable to the claim, namely that as amended from 1 July 2010, the defendant's construction accords with a sensible and practical construction of the Act, including the requirement in s 29(2) that a WFO (written formal offer) need bear the quality that the same 'would dispose of the claim if the offer ... were accepted'. The need for a discharge was merely a formal condition subsequent to a binding compromise."

[12] On behalf of the defendant, particular emphasis is placed on the obligation on the parties, pursuant to s 292(2) of the Act to make a written final offer "that would dispose of the claim if the offer ... were accepted". Not surprisingly, particular emphasis is also placed on the use of the words "is settled" where used in s 293 of the Act.[5]

[13] In support of his primary position that this issue ought not be determined pursuant to r 483, the plaintiff raises three matters in particular:[6]

1. First, that the defendant has not clearly articulated the question sought to be determined by the court.

2. Second, for the court to determine the question in favour of the defendant might prejudice the plaintiff's position at trial.

3. Third, the resolution of the proposed question would not in any material way reduce the issues to be determined at trial and, accordingly would have no material impact on the time and costs of the litigation.

[14] As to the first of these matters, I do not consider that it ought defeat the application. The question to be determined by the court has been articulated in clear enough terms in my view.

[15] In respect of the issue of prejudice it was contended on behalf of the plaintiff that:[7]

"Were the court to address a separate question and resolve that, insofar as that discreet separate question is concerned, there was a compromise pursuant to the Act, the [plaintiff] submits that the result would be:

a. that the issue of whether or not there was ever a concluded agreement capable of being binding given that the issue and terms of any discharge and release were never addressed would remain a live issue at trial;

b. that the issue of whether or not the court ought set aside or refuse to enforce the compromise would remain a live issue at trial;

c. that if the plaintiff was successful on either of the above any decision on a separate question as to whether there was a compromise that satisfied the Act would be rendered futile;

d. that all of the facts relevant to these issues would be required to be adduced and considered at trial regardless of whether the court [decides this issue];

e. that the parties would be required to prepare for trial on the basis that the compromise may be set aside and the issue of the second incident was live to be determined; and

f. that a finding that there was a compromise capable of satisfying the Act made before the issues as to the formulation of enforceability of any compromise agreement has the potential to prejudice the plaintiff's ability to have the issues resolved in its favour at trial."

[16] The reference to a "second incident" in subparagraph e. above is a reference to the fact that in addition to the claim said by the defendant to be compromised, the plaintiff had a further claim/injury for which it was seeking damages against the defendant.

[17] As to the issues of time and money, it was argued:[8]

"17. The resolution of the proposed separate question will not in any way reduce issues to be determined at trial.

1. The applicant and respondent agree that any adjudication of issues surrounding the making of the offer (and by default whether there was a complete agreement) and/or whether any agreement ought be set aside or enforced can only occur at a full trial.
2. The resolution of the separate question will do nothing to resolve any of the factual issues or fundamental aspects of whether there was a compromise.
3. Regardless of the answer to the separate question, the issue in respect of quantum will not be significantly altered.
4. The plaintiff claims to have suffered injury as a result of two separate workplace incidents. ....

1. Regardless of the determination of the proposed separate question, the court will still be tasked with making an assessment of:

(b) the contribution and apportionment of each potential incident;

(c) the total quantum of the claim and, dependant upon assessments of liability and apportionment, the formulation an award [sic] proportionate to the extent of that assessment.

1. The resolution of the preliminary point will do nothing to save the extent of preparation required for trial nor the extent of evidence that would be required to be adduced."

[18] Rule 483 is clearly intended to afford the court a wide discretion to determine an issue in a proceeding separately from other issues. The wording of r 483 also makes it clear that its operation is not limited to those cases where the determination of the issue would not resolve the whole of the dispute between the parties. However, it has also been recognised that the court should be cautious not to exercise its discretion in cases involving "over ambitious" attempts to resolve separate questions. In Reading Australia Pty Ltd v Australian Mutual Provident Society,[9] Branson J set out a number of principles which, in his Honour's view, provided guidance as to when an order would be made under O 29 r 2 of the Federal Court Rules. A number of those general principles were identified with approval by Boddice J in Advance Traders Pty Ltd v McNab Constructions Pty Ltd & Anor.[10] In Advance Traders, Boddice J observed that the O 29 r 2 of the Federal Court Rules is "materially in identical terms to r 483". His Honour then went on to set out a number of those general principles:

"(e) care must be taken in utilising the procedure provided for in 0 29 r 1 to avoid the determination of issues not 'ripe' for separate and preliminary determination. An issue may not be 'ripe' for separate and preliminary determination in this sense where it is simply one of two or more alternative ways in which an applicant frames its case and determination of the issue would leave significant other issues unresolved...;

(f) factors which tend to support the making of an order ... include that the separate determination of the question may:

(i) contribute to the saving of time and cost by substantially narrowing the issues for trial, or even lead to disposal of the action; or

(ii) contribute to the settlement of the litigation ...

(g) factors which tell against the making of an order ... include that the separate determination of the question may:

(i) give rise to significant contested factual issues both at the time of the hearing of the preliminary question and at the time of trial ...

(ii) result in significant overlap between the evidence adduced on the hearing of the separate question and at trial - possibly involving the calling of the same witnesses at both stages of the hearing of the proceeding ... This factor will be of particular significance if the Court may be required to form a view as to the credibility of witnesses who may give evidence at both stages of the hearing of the proceeding; or

(iii) prolong rather than shorten the litigation ..." (citations deleted)

[19] In this proceeding, no issues arise concerning the credibility of witnesses. Also, in my view, the separate determination of the issue would be unlikely to either prolong or shorten the substantive hearing of the action.

[20] It was conceded by Mr Morris, counsel for the plaintiff, that the resolution of the question raised in this application would not prevent the plaintiff from arguing the authority point raised in paragraph 10(d)(iv) of the plaintiff's reply. However, in this case, as to whether a written formal offer capable of settling the subject claim for the purposes of s 292 and s 293 of the Act existed, is likely to involve not only the resolution of the question raised in this application but also the resolution of the authority issue. In this regard, it is common ground that the authority issue is one which could only be determined at a full hearing of the matter at trial including cross-examination of, in all probability, a practitioner employed by the plaintiff's former solicitors.[11]

[21] In my view, this is not an appropriate case for the exercise of the court's discretion under r 483. The factors that lead me to this conclusion are:

1. I am not convinced that the determination of this issue would in any material way reduce either the time or the costs associated with the substantive litigation; and

2. The determination of the issue is unlikely to contribute in any material way to the settlement of the substantive action; and

3. Whether the offer purportedly accepted by the defendant was capable of settling the subject claim for the purposes of the Act will involve the consideration of both the question raised in this application and the authority point raised in the plaintiff's reply. And, it is not disputed that the latter can only be properly addressed at trial; and,

4. A determination at this stage of the question raised in the subject application may well complicate the hearing of the substantive action. In this context, I consider it likely that the evidence concerning the parties' failure to discuss the details of a discharge could overlap with evidence concerning the authority issue. That will almost certainly be the case in respect of the plaintiff's failure to sign a discharge. Without expressing a final view about the question raised in this application, it is not too difficult to envisage the situations where the failure to sign a discharge was consistent with there being no written final offer which, if accepted, would compromise a claim or, on the other hand, where such a failure was inconsistent with that situation.[12] Where the absence of a signed discharge might fall within those potential situations would be the subject of evidence. A finding by the court upon an application such as this could unreasonably prejudice not only the plaintiff's conduct of his case but also the trial judge's management of the case.

[22] Finally, in this context, I am unable to see how a determination of this application in the defendant's favour would materially address the concerns raised in the first dot point of para 6 of its written submissions.[13] A resolution of the question posed in the defendant's application would not dispose of the compromise issue as the authority of the plaintiff's former solicitors remains in issue. It seems to me, that the defendant's position vis a vis the plaintiff's former solicitors would remain largely unchanged regardless of the outcome of this application. To put it another way, a negative outcome for the defendant in this application would still leave it having to confront the authority issue and that situation would likely remain largely unchanged in the case of a positive result for the defendant.

[23] In view of the reasons for dismissing this application, I consider it neither necessary nor desirable to express a final view about the competing arguments raised by the parties concerning the applicability of the reasoning of Justice Margaret Wilson in Bishop's case.

[24] After hearing submissions from counsel, I have decided that the most appropriate order as to costs is that they be reserved.

2. The costs of and incidental to this application are reserved.

[2] Defendant's written submissions, para [6]; see transcript T1-16, LL10-48.

[3] [2008] QSC 154.

[4] Defendant's written submissions, para [6].

[5] Defendant's written submissions, paras [22]-[26].

[6] Plaintiff's written submissions, paras [13]-[25].

[9] [1999] FCA 718; (1999) 217 ALR 495, [8].

[11] Affidavit of L Mogg (filed 24 October 2012) para [7]; see also Plaintiff's written submission paras [5], [18].

[12] For example, execution of a discharge may be no more than a mere formality or the discharge itself may be of some substance and complexity (e.g. containing warranties, confidentiality clauses) the terms of which have yet to be agreed between the parties; see Bishop v Woolworths Limited [2008] QSC 154, [48]-[51].