‘Material Fact’ – lodging the Q-COMP review (‘entitlement’) not the IM’s decision

Nooteboom v Ernest Henry Mining Pty Ltd [2010] QSC 106

The applicant sought to extend the limitation period to cover an ‘over period of time’ psychiatric injury. The ‘material fact of a decisive nature’ relied upon was the decision of Industrial Magistrate  Tonkin delivered on 2 February 2009, overturning Q-COMP’s decision and accepting the injury was not excluded by ‘reasonable management action’.

It seems both the parties when corresponding about the appeal considered the decision of the Magistrate to be a ‘material fact’. However, her Honour Ann Lyons J did not find it was and further their mistake did not raise grounds for estoppel or waiver:

[47] It is clear that in subsequent correspondence the legal representatives for the applicant and the respondent both agreed that the date of the decision by Industrial Magistrate Tonkin was a material fact of a decisive nature. However, in my view, this is incorrect and is a mistake of law. As Mackenzie J said in Roberts v Australia and New Zealand Banking Group Limited.[8]
“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 that outcome is unavoidable for the reasons given.”
[48] In the decision of the Chief Justice in Roberts v Australia and New Zealand Banking Group Limited [9] his Honour stated;

“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.”

Her Honour reviewed the legislative amendments to the WorkCover Queensland Act 1996 (Qld) and the Workers Compensation and Rehabilitation Act 2003 (Qld), and in particular the introduction of section 280A:

[40] The effect of those legislative changes in July 2001 was that those amendments allowed the present applicant the means by which he could pursue his claim through the pre-litigation procedures even before the decision of Industrial Magistrate Tonkin in February 2009.

Ultimately, her Honour found this to be fatal to the applicant because it meant he was a person “entitled to seek damages” and the ‘gateway’ was already opened and the Magistrate’s decision did not open it. The applicant argued that until the Magistrate’s decision was known, it was not known whether the claim was viable and this was the ‘material fact’. In this respect he relied on:

[28] The decision of Charlton v WorkCover Qld & Ors[2] discussed the 1996 Act before the 2001 amendments. In that decision, because the appellant had no entitlement to seek damages until the decision of the Industrial Magistrate, leave was given to commence proceedings as the decision of the magistrate was considered to be a decisive consideration. Williams JA stated;

Sections 30 and 31 of the Limitation of Actions Act were not drafted with the intricacies of the Act (particularly s 253) in mind. There were not in 1974 many, if any, statutory provisions such as s 253 of the Act. In my view when one considers the provisions of s 253 in the context of s 30 and s 31 of the Limitation of Actions Act it must be a decisive consideration that for the first time a person has become entitled to seek damages for an injury sustained in the course of employment. As already noted, until the decision of the Industrial Magistrate the appellant had no entitlement to commence proceedings seeking damages for an injury allegedly sustained in the course of his employment. The decision of the Industrial Magistrate had the effect of clothing facts already known with a decisive character, namely the consequence that a reasonable person taking appropriate advice on those facts would conclude that it was only then appropriate to commence proceedings. It follows in my view that the learned judge at first instance erred in refusing to make an order extending the limitation period so that it expired 12 months after the date of the decision of the Industrial Magistrate, namely 15 July 2005.” (my emphasis)

However, her Honour distinguished it on the basis of entitlement:

[43] In the present case the chronology outlined above has set out the relevant steps taken by the applicant. It is clear that the applicant consulted solicitors within a year of ceasing work and an application for workers compensation was made shortly thereafter. This claim was rejected on 25 August 2006 and on 23 November 2006 the applicant lodged an Application for Review with Q Comp which was received on 12 December 2006. Because of the amendments to the Act, once that application for review was lodged the claimant fell within the criteria identified in s 253(1)(c) and was thus entitled to seek damages at that time. In the present case therefore the fact that the applicant had his initial application for worker’s compensation rejected was not a bar to him proceeding with the claim for damages:

[44] Accordingly, the decision by the Industrial Magistrate on 2 February 2009 could not be a material fact of a decisive nature. In my view therefore the first time the current applicant was a person “entitled to seek damages for an injury sustained by a worker” in accordance with s 253 of the 1996 Act was not when the decision of the Industrial Magistrate was made in February 2009. The Industrial Magistrate’s decision did not result in “opening a statutory gateway”[5] in relation to the applicant’s claim for damages because that gateway had already been opened. As Williams JA stated in Hintz v WorkCover Qld & Ors[6]

“The appellant had all the knowledge relating to his right of action at the time he commenced the District Court proceedings on 26 June 2003. The problem was that at that time he failed to take the necessary steps pursuant to the Act (which were then open to him) to give him the right to commence proceedings at that time.”

Conclusion

The ‘material fact of decisive nature’ was the lodging of the review application because it through the amendments opened the ‘gateway’ to pursue the claim:

[46] It would seem to me therefore that the applicant in fact had all the knowledge relating to his right of action in late 2006 but the problem was that at that time he failed to take the necessary steps pursuant to the Act (which were then open to him) to give him the right to commence proceedings at that time. The lodging of the application for review received on 12 December 2006 was a material fact of a decisive nature because it entitled the applicant to seek damages and the ability for him to proceed to a damages claim was not dependent on the decision by Industrial Magistrate Tonkin. In my view then, the material fact of a decisive nature expired on 12 December 2007.

[49] The mistake of the parties therefore does not affect the fact that the claim is statute barred and that the material fact of a decisive nature occurred on 12 December 2006. It was, therefore, a matter for the legal representatives to have protected the applicant’s interests by making an application for urgent proceedings to the self insurer in accordance with s 280A which required the agreement of the self insurer. The applicant was always able to protect his position by an application pursuant to s 305, seeking leave to start proceedings without complying with s 302.
[50] I consider the applications should fail. Given the failure to protect the applicant’s interests is in reality the failure of the solicitors the applicant may have an avenue open to him to take an action against his solicitors.[10] That factor however has not been a determining factor in the resolution of the applications before me.[11] The basis for the dismissal of the application is the same as in Hinz v WorkCover where the applicant in that case “did not take any of these steps that were available to him to pursue his right of action in respect of the accident of 31 March 1999. It may be that he has a remedy against those who were advising him in that regard. But that is an irrelevant speculation here.”

Brisbane Barrister – David Cormack

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