![Employer’s application for worker’s claim to be set aside successful: Kalecinski v Mercy Community [2024] QSC 49](https://littleslawyers.com.au/wp-content/uploads/elementor/thumbs/jon-tyson-kR4K8nJ9JRc-unsplash-r200bljlc9lw0d1k3ywtbayrn3h2adwsvrfu3nxgpk.jpg "Employer’s application for worker’s claim to be set aside successful: Kalecinski v Mercy Community [2024] QSC 49")
Employer’s application for worker’s claim to be set aside successful: Kalecinski v Mercy Community [2024] QSC 49
The Supreme Court of Queensland recently set aside a worker’s claim following an application made by his employer. The Court considered several factors, including the worker’s apparent failure to comply with the requires of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (‘WCRA’). Additionally, the Court examined whether the cause of action was time barred pursuant to s 11 of the Limitation of Actions Act 1974 (Qld) (‘LAA’).
Background
The Plaintiff, Wojiech Henryk Kalecinski, was employed by the Defendant, Mercy Community as a maintenance assistant from 6 February 2017 through 23 August 2019. The Plaintiff alleged that he suffered a back injury through the course of his employment at the Defendant’s premises in Rockhampton on 18 May 2018.
An application for statutory workers’ compensation benefits was lodged by the Plaintiff on 20 July 2018. By its decision of 22 August 2018, the application was rejected by WorkCover Queensland (‘WorkCover’). Thereafter, the Plaintiff sought a review of this decision to the Workers’ Compensation Regulator. On 8 January 2019, the Regulator confirmed WorkCover’s decision to reject the Plaintiff’s statutory claim. No appeal was made thereafter to the Queensland Industrial Relations Commission, as was the Plaintiff’s entitlement had he elected to do so.
On 7 December 2023, the Plaintiff filed a claim in the Supreme Court of Queensland. An application was filed by the Defendant on 17 January 2024, seeking orders under r 16 of the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’) striking out the claim and statement of claim. In response, the Plaintiff filed an amended claim and statement of claim. As identified later by Crow J in his judgment, the statement of claim failed to plead the “material facts necessary to constitute the cause of action in negligence and in particular, there is no allegation of duty of care nor breach of duty of care.”
Position of the Parties
The Defendant opposed the Plaintiff being granted leave to amend the statement of claim further to address its deficiencies, and further sought orders that the statement of claim be struck out, as well as for the claim itself to be set aside. The Defendant submitted that the Plaintiff’s claim was unable to succeed do to the Plaintiff’s failure to comply with numerous requires under the WCRA, together with the cause of action being time barred pursuant to the LAA.
The Plaintiff submitted that whilst his claim was time barred, an application to extend time should succeed, as he had obtained new medical evidence that did not form part of the original claim. With respect to his alleged non-compliance with the provisions of the WCRA, the Plaintiff submitted that “[a]s WorkCover and the Regulator rejected his claim, he was not responsible to comply with any sections of the WCRA”.
Decision
Crow J held in favour of the Defendant, setting aside the Plaintiff’s claim.
As to the Plaintiff’s submission that he ought to succeed in application to extend the time period on the basis of new evidence, Crow J noted that the relevant evidence, being reports and advice of two specialists, was obtained at least twelve months prior to the date of the Plaintiff’s filing of the claim in December 2023. Crow J opined that even if one assumed in the Plaintiff’s favour that the evidence is a ‘material fact of a decisive nature’, the Plaintiff could not succeed in an application for an extension of the limitation period given the period of time that had elapsed between that evidence being obtained and the claim being filed. Crow J was equally unconvinced that any other material fact existed, noting that the Plaintiff’s submissions and affidavit evidenced a knowledge of the fact of negligence, the identity of the respondent, causation, and the extent to which his injury was caused by the respondent’s negligence. Crow J therefore concluded that the Defendant’s time limitation defence was a “unsurmountable barrier” to the Plaintiff’s success, and therefore it would be inappropriate to grant leave to amend the claim and statement of claim.
Crow J went on to consider the Plaintiff’s alleged failure to comply with the provisions of the WCRA. Crow J noted that the operation of s 237 is plain in that a person who has not received a notice of assessment of injury, and is not entitled to receive one, is incapable of bringing a cause of action against their employer. Crow J considered the circumstances in which such an “infirmity” in a Plaintiff’s “title to sue” may be remedied, concluding that such circumstances did not apply to the Plaintiff and even if they did, the Plaintiff’s claim was out of time and he did not have prospects of success in an application to extend time under the LAA.
Crow J ordered that the Plaintiff’s claim be set aside.
If you have any queries regarding the article, please contact via Free Claim Checker or email us.
