In the matter of Goodhew v WorkCover Queensland [2024] QSC 66, the plaintiff, Mr Jason Goodhew, commenced proceedings against the defendant, WorkCover Queensland, in relation to a workplace injury.
The plaintiff allegedly suffered personal injuries when passing roof sheets up to co-workers on a roof at a daycare centre in Cairns. He is presently ensnared in preliminary procedures to be complied with under the Workers Compensation Rehabilitation Act 2003 (Qld) prior to being able to bring a court proceeding for damages. A dispute has arisen about whether he was a “worker” within the meaning of the Act and whether the defendant should avoid attending a compulsory conference because it thinks the plaintiff was not a worker.
The compulsory conference pursuant to s 289 of the Act was in due course set to proceed. Then, the day before the compulsory conference, WorkCover wrote to Mr Goodhew’s solicitor announcing it was not in a position to attend the compulsory conference because, based on the most recently received information, it had reached a final view that Mr Goodhew was not a “worker” under the Act. The letter went on to state:
“Given the WCRA policy does not respond (as Mr Goodhew was not a “worker”), the writer is not in a position to attend the compulsory conference because if WorkCover is not indemnifying ICS [the purported employee], WorkCover does not have the legal capacity to make an offer as the WCRA requires”.
In the wake of the compulsory conference not having proceeded, Mr Goodhew’s solicitor filed an application for the Court to, in effect, order that the compulsory conference proceed at a fixed time and date pursuant to ss 287 and 289 of the Act. A fortnight later WorkCover filed a cross-application seeking a declaration that Mr Goodhew was not a worker pursuant to the Act and that the Act did not apply to his damages claim for personal injuries.
WorkCover’s preclusion from attending a compulsory conference
Resolution of the application turns, to a substantial extent, upon whether WorkCover’s view that Mr Goodhew is not a worker, within the meaning of the Act, precludes it from seeing through the Act’s pre-court procedures.
It will be recalled the reason given for WorkCover baulking at that process at the last minute was its view Mr Goodhew was not a “worker” and WorkCover therefore did not have the “legal capacity to make an offer as the WCRA requires”. This reference to legal capacity was clearly a reference to the language of s 292(2) of the Act which provides:
“If a claim is not settled at a compulsory conference, each party that has legal capacity to settle the claim must ensure that it makes a written final offer or written final offers at the conference to another or other parties at the conference that would dispose of the claim if the offer or offers were accepted.”
In its consideration, the Court provided as follows at [13] to [16]:
It should immediately be observed that s 292(2)’s reference to “legal capacity” is only relevant if the claim “is not settled” at the compulsory conference. It is only if the claim is not settled at the compulsory conference that s 292(2) requires parties, with the legal capacity to settle the claim, to ensure that they make written final offers. Even if WorkCover were correct in perceiving it did not have legal capacity in the sense referred to in s 292(2), there is nothing in s 292(2) which would prevent it from settling the matter at a compulsory conference. If the subsection’s reference to legal capacity was intended to preclude settlement at the compulsory conference, the subsection would not have used the term “legal capacity” only in specific reference to the obligation to ensure an exchange of written final offers in the event the claim is not settled at the compulsory conference.
Considered in context, s 292(2)’s use of the term “legal capacity” is not a reference to WorkCover’s view, on the facts of the matter as known, that it is not liable to indemnify a potentially liable defendant. Rather, the term “legal capacity” is intended to refer to persons who, because of their personal circumstances, such as youth or intellectual impairment, lack legal capacity.
Such persons lack capacity in their own right to proffer a written final offer which, if accepted, would be legally binding. WorkCover has no such problem. It has legal capacity in the sense referred to in s 292(2).
WorkCover’s view that it has no legal obligation to Mr Goodhew because he is not a “worker” does not preclude it from attending the compulsory conference under the Act.
Declaration regarding whether the plaintiff was a “worker” within the meaning of the Act
In its consideration of the defendant’s cross-application, the Court provided as follows at [20] to [22]:
For the Court to intervene during the pre-proceeding stage to determine a discrete factual issue is at odds with the very nature of a scheme calculated at promoting the resolution of cases without a court proceeding.
Further to these considerations, it is apparent from perusal of such factual material as has been filed before me about whether Mr Goodhew was a worker, that a substantial array of evidence would need to be considered in considering the declaration application. It is also likely that deciding whether he was a worker will require the resolution of credit issues after some cross-examination. The debate obviously presents as an issue which, if it is to be resolved by a court, is best resolved within the framework of a filed proceeding in which the parties have committed to the pleading of their respective cases and engaged in disclosure.
For all of these reasons it is preferable that the Court does not intervene by the mechanism of a declaration at this pre-proceeding stage.
Ultimately, on 29 April 2024, the Supreme Court of Queensland ordered as follows:
- WorkCover’s application for a declaration is dismissed.
- Mr Goodhew’s application for orders including the fixing of the time and place for the compulsory conference is granted.
- The parties will settle and provide my associate with a draft consent order to be signed by me in Chambers, giving effect to order 2 and, if they cannot so agree, I will hear the parties as to the terms of the order at 10am on 3 May 2024 (out of town parties having leave to appear by videolink).
- I will hear the parties as to costs, if costs are not agreed in the meantime, at 10am on 3 May 2024.
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