Ellery v Australian Liquor Marketers Pty Limited

[2005] QDC 53

DISTRICT COURT OF QUEENSLAND

CITATION:	Ellery v Australian Liquor Marketers Pty Limited [2005] QDC 053
PARTIES:	LEON JAMES ELLERY Applicant v AUSTRALIAN LIQUOR MARKETERS PTY LTD (ACN 002 885 645) Respondent
FILE NO:	4169/04
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING	Brisbane
COURT:
DELIVERED ON:	17 March 2005
DELIVERED AT:	Brisbane
HEARING DATE:	16 February 2005
JUDGE:	Alan Wilson SC DCJ
ORDER:
CATCHWORDS:	LIMITATION OF ACTIONS – CONTRACTS, TORTS AND PERSONAL ACTIONS – PERSONAL INJURY CASES – where applicant allegedly fails to serve Notice of Claim pursuant to s 9 Personal Injuries Proceedings Act 2002 – where notice was served late – where application for declaration that claimant has remedied the non-compliance – alternative application seeking an exercise of discretion in the claimant’s favour enabling him to proceed further with the claim despite any non-compliance
Personal Injuries Proceedings Act 2002 WorkCover Queensland Act 1996
Cases considered: Devlin v South Molle Island Resort (2003) 2 Qd R 346
COUNSEL:	Mr A F Maher for the applicant Mr K N Wilson SC for the respondent
SOLICITORS:	Baker Johnson Lawyers for the applicant HBM Lawyers for the respondent

1. In a claim and Statement of Claim filed 19 November 2004 the plaintiff, a male born 20 May 1969, alleges he suffered injury while working in the defendant’s employment moving stock in a warehouse on 19 November 2001. On 18 November 2004 this court gave him leave under s 43 of the Personal Injuries Proceedings Act 2002 (PIPA) to start those proceedings, which were then stayed until he complied with Ch 2, Pt 1 of PIPA.

2. That Part establishes “pre-court procedures” which must be undertaken by a person wishing to bring court action for damages for personal injuries before that action is started. It is not in dispute that by reason of the retrospective application of the legislation and, in particular, ss 9(3) and (77A3), notice of the claim under s 9 should have been sent by 29 December 2002.

3. It was not sent until 21 June 2004. Under s 9(5) late delivery obliges the applicant to provide a reasonable excuse for the delay which, the respondent contends, he has not given. His application filed 15 December 2004 seeks an order “that the excuse for delay of the service of the Notice of Claim for damages was reasonable” which I have taken to be an application under s 18(1)(c) under which the court may:

   (i)             declare that the claimant has remedied the non-compliance; or

   (ii)            authorised the claimant to proceed further with the claim despite the non- compliance.

4. The respondent raises a preliminary objection: that PIPA does not apply. In his Statement of Claim the applicant alleges that he was injured in the course of his employment with the defendant; that he was a “worker” as that term is defined in the WorkCover Queensland Act 1996 (WQA); that the defendant was an “employer” within that definition in WQA; and, that he sustained an “injury” as that term is defined in that Act. In those circumstances WQA Ch 5 regulates the entitlement of the plaintiff, as a worker, to seek damages from his employer. PIPA does not apply, as s 6(2)(b) of that Act makes plain.

5. In truth, as an affidavit from the applicant’s solicitor Mr Tregenza[1] shows, the claimant was probably employed by Manpower Services Australia Pty Ltd which, it appears, hired out his services to the respondent. During argument, Counsel for the applicant conceded it may be necessary to re-plead against the respondent as occupier or in some other capacity but did not seek leave to amend, or to adjourn for that purpose. Unless and until that occurs, the present application is pointless.

   [1] Filed 18 November 2004 in file 4088/04.

6. The applicant purported to rely upon the decision of Philippides J in Devlin v South Molle Island Resort (2003) 2 Qd R 346 as extinguishing the need to replead or add another party, but that decision simply confirms the existence of alternative rights where an injured plaintiff seeks to sue, for example, both an employer and an occupier. The employer may be sued under WQA, and the claimant is not prevented from contemporaneously suing a concurrent tortfeasor under PIPA – subject to the notice requirements.

7. To determine the substantive application would in these circumstances be otiose, and academic. The applicant ought, prudently, do whatever is necessary to clarify the relief it seeks against the present and putative defendants (adding a defendant, if that is still permissible) and then return to repair, if possible, the alleged procedural defects.

8. Rather than dismiss the application, I will, if the applicant wishes, hear submissions concerning any application to adjourn it while those things occur, and costs.