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Common Law Limitation Period Policy

Background

The aim of this policy is to implement a consistent approach to claims lodged outside the relevant limitation period.

Prima facie, compliance or a waiver of compliance must be obtained  before the expiration of the limitation period and unless a Court makes a declaration under section 297 or gives leave under section 298 prior to the limitation date expiring, the matter becomes statute barred and the limitation date cannot be altered (section 302 (1) (a)).

The determination of this is relatively simple for a defined event, and a defence under s11 Limitation of Actions Act may be available. However, where the claimant intends to rely upon a material fact of a decisive character, this becomes a little bit more difficult.

This policy applies to injuries sustained prior to 31 January 2015.

WorkCover Queensland has adopted the following approaches to claims served after the limitation date has expired.

Policy

For defined events where compliance, or a waiver of compliance under s276, has not been obtained prior to the limitation date expiring and with no suggestion that a material fact exists, the Notice of Claim (NOC) should be returned to the claimant's solicitors informing them that they have not complied with s 302(1)(a) by obtaining compliance or a waiver of compliance within the limitation period (including any extended period pursuant to Schedule 5), that WorkCover intends to rely on a defence under s 11 of the Limitation of Actions Act and that they should withdraw their claim on the basis that it cannot be pursued. See Handover v Consolidated Meat Group Pty Ltd. [1]

1. Court proceedings issued past the limitation period under the Workers Compensation Act 1990 (also known as the Goss Amendments)

WorkCover's policy is to rely on the limitation period defence under s 11 Limitation of Actions Act and require the claimant to either discontinue the claim or bring a s31 application.

This is subject to the claimant's solicitors submitting the proposed application and supporting executed affidavit for WorkCover's consideration so if there is a clear case of a material fact and no evidence of prejudice WorkCover can agree to move forward with the proceedings without a s31 application and not raise the limitation defence.

2. Discrete injuries—standard NOCs lodged under the WorkCover Queensland Act 1996 and/or the Workers' Compensation and Rehabilitation Act 2003 past the limitation date and a material fact is being relied upon to extend the limitation date

Compliance will be dealt with in the usual fashion however the limitation issue will be clearly raised as an entitlement issue and claimants requested to provide  the proposed draft s31 application and executed supporting affidavit setting out the basis of their s31 application for WorkCover's consideration within 30 days of lodgement of the NOC.

WorkCover will endeavour to inform the claimant of its attitude towards the proposed s31 application within 30 days of receipt of the draft application and supporting affidavit or any further particulars requested.

If WorkCover is not prepared to waive its entitlement to rely on the limitation defence the claimant may be required to bring the s31 application prior to the compulsory conference or within a further period as agreed with WorkCover.

3. Discrete injuries—urgent NOCs lodged under the WorkCover Queensland Act 1996 and/or the Workers' Compensation and Rehabilitation Act 2003 and a material fact is being relied upon to extend the limitation date

Compliance will be dealt with in the usual fashion however the limitation issue will be clearly raised as an entitlement  issue  and as part of WorkCover's conditions the claimant will be required to submit a draft s31 application and executed supporting affidavit for WorkCover's consideration within 30  days of the agreement pursuant to which compliance is waived.

If WorkCover is not prepared to waive its entitlement to rely on the limitation defence the claimant will be required to bring the s31 application prior to the compulsory conference or within a further period as agreed with WorkCover.

4. OPT injuries—standard NOCs lodged under the WorkCover Queensland Act 1996 and/or Workers' Compensation and Rehabilitation Act 2003- whole claim statute barred and a material fact is being relied upon to extend the limitation date

Compliance will be dealt with in the usual fashion however the limitation period issue will be raised as an entitlement issue. WorkCover will require the claimant to submit a draft s31 application and executed supporting affidavit for WorkCover's consideration within 30 days of lodgement of the NOC.

If WorkCover is not prepared to waive its entitlement to rely on the limitation defence the claimant will be required to bring the s31 application prior to the compulsory conference or within a further period as agreed with WorkCover.

5. OPT injuries—standard NOCs lodged under the WorkCover Queensland Act 1996 and/or Workers' Compensation and Rehabilitation Act 2003 - part claim statute barred

Compliance will be dealt with in the usual fashion however the limitation period issue will be raised as an entitlement issue.

The parties agree to confer with respect to the medical evidence and the timing of the cause of the injury within 60 days of lodgement of the NOC. If the parties are unable to agree to the timing of the cause of the injury and/or agree that the time of causation or part thereof is outside the limitation period the claimant will be required to submit a draft s31 application and executed supporting affidavit for WorkCover's consideration within 30 days.

If WorkCover is not prepared to waive its entitlement to rely on the limitation defence the claimant will be required to bring the s31 application prior to the compulsory conference or within a further period as agreed with WorkCover.

6. OPT injuries—urgent NOCs lodged under the WorkCover Queensland Act 1996 and/or Workers' Compensation and Rehabilitation Act 2003

Compliance will be dealt with in the usual fashion however the limitation issue will be clearly raised as an entitlement issue and the claimant will be required as part of WorkCover's conditions to submit a draft s31 application and executed supporting affidavit for WorkCover's consideration within 30 days of the agreement pursuant to which compliance is waived.

If WorkCover is not prepared to waive its entitlement to rely on the limitation defence the claimant will be required to bring the s31 application prior to the compulsory conference or within a further period as agreed with WorkCover.


[1] Handover v Consolidated Meat Group Pty Ltd [2009] QSC 41.

Last updated
28 June 2019

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