Non-compliance with section 302(2) WCRA. Is this sudden death?

Hughes v Impulse Entertainment Pty Ltd & WorkCover Queensland [2013] QDC 21

This recent case provides a definitive answer to a question that has arisen numerous times in practice, but has never been answered judicially: Does non-compliance with the 60 day time limit in section 302(2) of the Workers’ Compensation & Rehabilitation Act (WCRA) prevent a claimant from pursuing a common law damages claim where the claim has otherwise been brought within the limitation period set by the Limitation of Actions Act 1974 (LAA)?

The answer, put simply, is ‘no’. That had also been assumed to be the case, on the basis that a claimant could simply serve another notice of claim and re-start the pre-proceedings process afresh. However, two contrary arguments existed: Re-starting the claim would be an abuse of process. Alternatively, section 302(2) created a new limitation period, overriding the one in the LAA.

The Court had previously considered the situation where a claim had been brought more than 60 days after the compulsory conference and outside the limitation period set by the LAA: Narayan v S-Pak Pty Ltd. The Chief Justice determined in that case non-compliance with the equivalent provision under the WorkCover Queensland Act 1996 was fatal and the Court lacked the jurisdiction to provide relief.

This case was complicated by the fact that it involved an over a period of time injury. The first part of that period fell more than three years before the date that the claim and statement of claim were filed. The parties accepted that the first period was now out of time, applying the principles in Narayan’s case. The defendants sought to have that part of the claim struck out. However, his Honour Judge Robin QC was not prepared to do so, presumably without first giving the claimant the opportunity to apply for an extension order under section 31 of the LAA.

This decision should provide some comfort to claimants (and their lawyers). It should also confirm the flavour of previous advice by insurance lawyers on this point.

If you would like any further information regarding this case or the operation of the WCRA, please contact Brady Cockburn of our Insurance team on 3231 2444.