The Workcover Queensland Act 1996 : new procedures for common law claims [Part 2]

This article explains the new pre-court procedures and additional procedures designed to foster settlement of claims introduced by the Workcover Queensland Act 1996, and the implication of the new provisions for practitioners.

Compensation for logdment of caveat without reasonable cause

This article examines s130 of the Land Title Act 1994 (Qld) in detail, and includes an analysis of authorities which have interpreted comparable provisions in other Australian jurisdictions and in New Zealand. Its purpose is to provide a comprehensive guide as to the circumstances in which the court may now be expected to award compensation in respect of the lodgment or continuance of a caveat in Queensland. Finally, the author considers whether the changes which have been embodied in s130 may now be regarded as providing adequate protection for persons who suffer damage as a result of the lodgment or continuance of a caveat which cannot ultimately be sustained.

Limitation of Actions - effect of admission of liability

The decision in Simpson v Lenton [2002] QDC 214 applied the decisions of the Court of Appeal in Lindsay v Smith [2002] 1 Qd R 610 and Morris v FAI General Insurance Co Ltd [1996] 1 QDR 495 in finding the second defendant, having admitted liability, was estopped from relying on the expiration of the limitation period.

Limitation of actions - Workcover Queensland Act 1996 s 308(2)

In Narayan v S-Pak Pty Ltd [2002] QSC 373 the court concluded that proceedings to which the Workcover (Queensland) Act 1996 applies must be commenced within 60 days after the compulsory conference required by s308(2) of the Act and there is no power in the court to extend the time for compliance.

Personal injuries sustained in the course of employment - claim against employer under Workcover Queensland Act 1996

In Devlin v South Mole Island Resort [2003] QSC 020 the Court concluded the applicant was entitled to pursue a concurrent claim he alleged he had against the respondent under the Personal Injuries Proceedings Act 2002 in respect of injuries sustained in the course of employment, and also that the Workcover Queensland Act 1996 did not abolish the applicant's right to proceed against the respondent.

Practice and Procedure - Proceedings claiming damages for personal injuries commenced before June 18, 2002

In Inglis v Connell [2003] QDC 029 the court considered s6(3) of the Personal Injuries Proceedings Act 2002 in relation to the application of the Act. The conclusion reached was that the provision should be interpreted as providing that the requirements of the Act do not apply in respect of personal injury the subject of any proceeding commenced before June 18, 2002.

Limitation of Actions - incorrect date of accident advised to solicitor

The decision of the Queensland Court of Appeal in Cormie v Orchard [2003] QCA 236 involved consideration of whether the respondent solicitor was liable in negligence for failing to commence proceedings within the applicable limitation period in circumstances where the solicitor had relied on the advice as to the date of injury nominated incorrectly but unequivocally by the client.

Party to litigation insolvent company - costs order against non-party liquidator

In Kimtran Pty Ltd v Downie [2003] QDC 043 the court allowed in part an appeal from the refusal by the Queensland Building Tribunal to order the respondent liquidators pay the appellants' costs of proceedings in the Tribunal. The decision involved an examination of authorities which have considered the circumstances in which it is in the interests of justice to make an order for costs against a non-party.

Workcover Queensland Act 1996 - award of damages for future care not precluded by s315

In Karanfilov v Inghams Enterprises Pty Ltd interpreted provisions of the Workcover Queensland Act 1996 as it applied to an injury occurring before 1 July 2001, i.e. prior to amendments made by the Workcover Queensland Act 2001. The decision involved the construction, in particular, of sections 312 and 315 of the Act

Costs order against company in liquidation unlikely to be effective indemnity

In Kimtran v Downie [2003] QCA 424, the Queensland Court of Appeal allowed an appeal from the decision of a District Court judge who had ordered costs against a non-party liquidator. It held that the court's decision in relation to the awarding of costs against a liquidator was not constrained by the decision of the of the Court of Appeal in Mahaffey v Belar Pty Ltd [1999] QCA 2 in the manner stated in the District Court.

Pleadings

The Uniform Civil Procedure Rules have brought significant changes to the rules of pleading. The rules place a heavy emphasis on 'truth in pleading', and early identification of the true issues between the parties. There are now a number of pleading rules dealing with specific issues. The changes in the rules are most significant with respect to the level of particulars required for pleading damages, and the facts that must be pleaded in defences. In this article the rules of pleading are examined and contrasted with the rules applicable before the commencement of the UCPR.

Counting the costs : assessments under the UCPR

In McCoombes v Curragh Queensland Mining Ltd [2001] QDC 142 the court considered a number of significant issues in relation to assessments of costs under the Uniform Civil Procedure Rules 1999 (Qld). The Court of Appeal subsequently declined an application for leave to appeal the decision under s118(3) of the District Court Act 1967 (McCoombes v Curragh Queensland Mining Ltd [2001] QCA 379. The judgment in the District Court, and on some matters the subsequent observations in the Court of Appeal, provide clarification in respect of many issues relating the assessment of costs under the UCPR.

Disclosure of documents : by duty, court order, or beyond reach?

The article examines the decision in Erskine v McDowall [2001] QDC 192, where the Court considered an application for an order that the defendant disclose documents to which she had a right of access under the Freedom of Information Act 1982 (Cth).

Solicitors who commence a proceeding without authority act at their peril

In Nominal Defendant v Kisse [2001] QDC 290 a person suffered personal injury caused by a motor vehicle in circumstances where there was a cause of action to which the Motor Accident Insurance Act 1994 applied. The person died before taking the steps required under Pt 4 of the Act and before commencing litigation to enforce that cause of action. The decision also involved a costs order against solicitors on an indemnity basis, providing a timely reminder to practitioners of the importance of ensuring they have proper authority before commencing any court proceedings.

Setting aside default judgment - whether applicant must file affidavit providing direct evidence of defence 'on the merits'

In Prus-Butwilowicz v Moxey [2002] QDC 166 the court examined the question whether an applicant for an order setting aside a default judgment was required to file an affidavit providing direct evidence of a defence 'on the merits' and whether the position had changed under the Uniform Civil Procedure Rules 1999 (Qld).