WCRA: 60 days to commence from the compulsory conference or not?

Engeler v State of Queensland [2017] QDC 253

McGill SC DCJ

In October 2013, the plaintiff suffered a spine injury while riding across Moreton Bay on a motorboat when it allegedly hit a wave causing the plaintiff to be thrown to one side. Relevantly, the plaintiff was travelling in the course of and for the purpose of her employment with the second defendant, appropriately sued as the first defendant.

The second defendant was served with a notice of claim under the Personal Injuries Proceedings Act 2002 (Qld) (“PIPA“) on 4 December 2015 and the first defendant served with a notice of claim under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) on 11 October 2016.

Pre-litigation procedures were not completed prior to the expiration of the limitation period and the plaintiffs were successful in an order under s 59 of the PIPA for further time within which to commence a proceeding. Relevantly, the plaintiffs had 60 days after the compulsory conference, which was held on 22 May 2017, to commence proceedings. The proceedings were ultimately commenced on 28 July 2017. As explained by McGill SC DCJ the confusion stemmed from the miscalculation of the relevant deadline:

[4] The solicitor for the plaintiff deposed to his having been of the view following the conference that proceedings were to be commenced on or before 21 July 2017 … However on 13 July 2017 he received a letter from the solicitors for the second defendant asserting that “the plaintiff now has until 4 August 2017 to file court proceedings in this matter.” It appears that the solicitor for the second defendant calculated this date on the basis that the period of 60 days allowed by the order ran from the time when the final offers ceased to be open for acceptance. The solicitor for the plaintiff practises in Sydney, and deposed to having relied on the date contained in the letter from the second defendant’s solicitor for the purposes of identifying the filing deadline, presumably on the basis that Queensland solicitors were to be expected to have a better understanding of the correct operation of the Queensland Acts.

First defendant

The first defendant subsequently applied for summary judgement under r 293 of the Uniform Civil Procedure Rules 1999 (Qld) as the proceeding had not been commenced as required by s 302(3) of the WCRA. The plaintiff submitted that the period of 10 business days should be characterised as being part of the ‘holding’ of the compulsory conference. Of this, McGill SC DCJ stated:

[5] … WCRA s 292(9) does not permit the proceeding to be commenced until that period of 10 business days has expired, and therefore, in order to give effect to the provision that the claimant has 60 days after the compulsory conference has been held within which to commence a proceeding, the period of 60 days must run from the expiration of the period when a claimant is not allowed to commence a proceeding. If that is not the case, for practical purposes the claimant has only about 46 days within which to commence a proceeding. The proceeding cannot be commenced unless the compulsory conference process does not resolve the claim, and that will not be known until the period of ten business days has expired.

[6] … There have been however decisions which have proceeded on the basis that the date on which the conference is “held” for the purpose of s 302 is the date on which the parties actually confer.[9]That strikes me as the natural reading of the words used in the section. Such an interpretation is also consistent with the statutory objective that claims should be resolved expeditiously,[10] in that, if the pre-litigation procedure is unsuccessful in settling the claim, if the claimant wants to litigate, then the claimant should do so promptly.

[8] … On the whole I am not persuaded that there is any good reason in the text of the legislation itself, or in its scheme of operation, to interpret s 302(3) other than by its natural reading, which is that it provides a limit of 60 days running from the day on which the parties convene to confer as required by WCRA s 289, which is the day on which the compulsory conference under that Act is held.

The plaintiff further relied on s 31 of the Limitations of Actions Act 1974 (Qld) for an extension of time. Relevantly, the plaintiff submitted that the material fact was either the date on which the plaintiff was required to commence a proceeding or the practice in Queensland for commencing proceedings under the WCRA. Of this, his Honour stated:

[10] … up until 13 July 2017, the plaintiff’s solicitor, (and hence the plaintiff if the plaintiff had taken advice on the point) knew the correct time limit within which a proceeding was to be commenced. The plaintiff’s case is that he was then led astray by what was said by the second defendant, but that would provide no basis for relief against the first defendant.

[11] Although the particular date by which a proceeding had to be commenced would not have been known, or indeed knowable, until the date for the conference is fixed, that will always be the case prior to the time when a date for a compulsory conference is determined, and even then the date would be provisional until the compulsory conference was actually held. I consider there is no discretionary basis on which an extension of time under s 31 would be given, even if the foundation for it could be laid.

The plaintiff’s application against the first defendant was dismissed, McGill SC DCJ finding that the plaintiff’s claim against the first defendant would likely be time barred.

Second defendant

As to the second defendant’s application for summary judgement, McGill SC DCJ noted that as the original extension of time was made pursuant to an order of the court, it was susceptible to a further extension of time. Of the power to further extend the time limitation, McGill SC DCJ said:

[14] … any extension is a matter of discretion, and it was submitted that the effect of the authorities is that the court would not readily exercise the discretion so as to deprive the defendant of the benefit of a defence under the Limitation of Actions Act 1974.[15] Nevertheless the discretion must be exercised on the basis of the circumstances of the particular case.

Of particular relevance to McGill SC DCJ in exercising the discretion was the letter from the solicitor for the second defendant. Exercising the discretion to extend the time limitation, his Honour stated:

[19] It was submitted that there could be no reliance in circumstances where, prior to the letter being written, the solicitor was proceeding on the basis that the time expired on what was the correct date. However, I regard that as only confirming that thereafter the solicitor allowed that time to pass specifically in reliance on the representation of the second defendant’s solicitor as to when a proceeding could be commenced.

[23] Had it not been for the solicitor’s mistake in the letter, and the plaintiff’s solicitor’s reliance on it, there is no reason to think that the movement of the plaintiff’s solicitor towards commencing a proceeding within time would have been unsuccessful. When he believed he had more time to commence the proceeding, he did take advantage of this to some extent, but that does not mean that, if he had continued in his prior belief as to the final date to commence a proceeding, he would not have met that date.

[25] If no extension is granted the plaintiff will lose the opportunity to pursue her claim which may well be a good one, and will have done so because her solicitor was led into error by the solicitor for the second defendant. It seems to me that that provides a good reason in the circumstances of this case for extending the period within which the proceeding can be commenced as against the second defendant so that it includes the day on which the proceeding was in fact commenced.

David Cormack – Brisbane Barrister & Mediator

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