WCRA: compliance & provision of taxation returns

Glasson v Toll Holdings Limited [2015] QDC 204

The applicant sought an order that the Notice of Claim complied with section 275 of the Workers’ Compensation and Rehabilitation Act 2003. Unfortunately for the applicant, while the Notice of Claim was served within the limitation period, compliance or a waiver was not granted by the self-insurer. Central to the argument was whether supporting documentation, in particular, taxation returns were required to grant compliance.

The applicant relied on His Honour Judge McGill in Jamieson v Council of City of Gold Coast [2000] QDC 468. However, His Honour found it had been overruled by the Court of Appeal’s decision in Brew v Followmont Transport Pty Ltd [2005] QCA 245[2005] 2 Qd R 482.

Samios DCJ

[31] What the applicant emphasises here is that his Honour said “supporting the claim”. The words “supporting the claim” are also to be found in subsection (8), and in paragraph (b) to subsection (8) of section 275. Therefore, the applicant submits that what was required in the notice was documents supporting the claim. Further, the applicant provided documents and there was no need for the applicant to provide the taxation information that I have referred to generally, because that was not required to support the claim.

[32] Reference is made to the claim for out of pocket expenses. Clearly the document here in that respect made it clear that no such documents existed. I accept the submission that the Act does not require the applicant to provide copies of documents which do not exist. However, I do not agree that the same consideration applies to tax returns and notices of assessment which exist, but have not been obtained.

[33] I do not accept they are irrelevant to a determination by the respondent of the claim. Further, I do not accept that because the applicant may be a longstanding employee of the respondent, it follows that as the respondent may well know everything about him, there is no obligation on the applicant to obtain the taxation information.

[34] Taxation information, in my opinion, would support the claims being made in this case for past lost earnings and future lost earnings. I appreciate that the Act says that the purpose of part 5 of the Act is to facilitate the just and expeditious resolution of the real issues in a claim for damages, at a minimum of expense, and that the parties have an obligation to avoid delay, expense, and technicality, and to proceed in an expeditious way. However, as a matter of fact, I come to the view the documents that were not supplied were documents that would support the claim for lost earnings or diminution of income earning capacity.

[35] While the applicant may have been claiming only that money that he had received while on compensation, nevertheless it has relevance to past loss, but the documents certainly have relevance to future loss, to give a picture of the applicant. And while it may be the fact that he was only ever an employee, it might have been the fact that in the documents he may have disclosed other sources of income, which would have been relevant to the respondent’s assessment of the claim.

[36] But even his actual income would have been relevant to the assessment of the claim, in any event, where these actual sources of income would have been relevant to the assessment of the claim. Therefore, despite the submissions of the applicant, I come to the view that these documents are documents that support the claim.

[37] The long and the short of it is that the applicant did not make an application before the limitation period expired to commence proceedings, subject to conditions, which would have included the obtaining of the relevant taxation information in due course.

[38] I do not accept that the documents were, at the time the notice of claim was delivered, irrelevant. On the contrary, I find that they were, as I said, documents that supported the claim. Therefore, I dismiss the application. I’ll hear the parties on the question of costs. So the one order I make is application dismissed.

David Cormack – Brisbane Barrister & Mediator

 

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