DISTRICT COURT OF QUEENSLAND
CITATION:
WorkCover Queensland v QR Support Services Pty Ltd [2021] QDC 329
PARTIES:
WORKCOVER QUEENSLAND
(plaintiff)
v
QR SUPPORT SERVICES PTY LTD
(defendant)
FILE NO/S:
1054 of 2021
DIVISION:
Civil
PROCEEDING:
Application for summary judgment pursuant to rule 292 of the Uniform Civil Procedure Rules 1999
ORIGINATING COURT:
District Court of Queensland
DELIVERED ON:
24 November 2021, ex tempore
DELIVERED AT:
Brisbane
HEARING DATE:
24 November 2021
JUDGE:
Judge Loury QC
ORDER:
1. Summary judgment for the plaintiff in the amount of $192,499.49, plus interest in the sum of $6,335.60.
2. The defendant pay the plaintiff’s costs on the standard basis.
SOLICITORS:
B Le, solicitor at Patane Lawyers, for the plaintiff
T Logan, solicitor at Morgan Conley Solicitors, for the defendant
The plaintiff is WorkCover Queensland, the defendant a business, which was operating in Queensland. On the 6th of June 2018, the defendant took out a policy for accident insurance with WorkCover Queensland (“WorkCover”). This required the payment of an annual premium. The defendant submitted to WorkCover its wage figures on the 11th of August 2020. From that information, the plaintiff assessed the premium.
On 18 August 2020 the premium was reassessed because an employee of the defendant advised WorkCover that an application for compensation had been incorrectly lodged against a policy of QR Construction Services Proprietary Limited when it should have been lodged against the defendant’s policy. Upon reassessment of the premium payable, in addition, a payment plan for the defendant to pay the premium by monthly direct debit was set up. Between 21 September and 20 January 2021, the defendant paid instalments by direct debit. There were five such payments made.
On 28 January 2021, the defendant requested the plaintiff cancel the policy, as all workers were then employed by another entity. In accordance with section 13 of the Workers’ Compensation and Rehabilitation Regulation 2014, an employee of the defendant informed the plaintiff of the actual gross wages, plus superannuation, paid by the defendant for the period from 1 July 2020 until 31 December 2020.
The plaintiff, in response, cancelled the payment plan and reassessed the premium payable, and issued a final premium notice for the amount of $192,499.49. The defendant has not paid that premium. That is a breach of the Workers’ Compensation and Rehabilitation Act 2003 and the Workers’ Compensation and Rehabilitation Regulation 2014.
By claim dated 5 May 2021, the plaintiff seeks the amount owing, pursuant to the Workers’ Compensation and Rehabilitation Act 2003 section 54 subsection (7), and the Workers’ Compensation and Rehabilitation Regulation 2014.
On 23 August 2021, the defendant filed its defence. That was after a request for further and better particulars, which were supplied. The defence comprises entirely of admissions and non-admissions, save for a denial that the premiums have not been calculated in accordance with the relevant legislation, and using actual wages, because that is what the defendant believes.
The evidence contained in the affidavit material filed by the plaintiff establishes that the defendant applied for a policy with the plaintiff, declared its wage figures and paid the monthly instalments for some six months. When the policy was cancelled, the plaintiff determined the premium using the actual wages and superannuation figures provided by the defendant and issued the premium notice. The plaintiff assessed the premiums according to the method and at the rates specified by WorkCover by gazette notice.
Summary judgment is sought pursuant to rule 292 of the Uniform Civil Procedure Rules 1999, or alternatively, there’s an application to strike out. Rule 292 requires my consideration of two questions: firstly, whether the defendant has no real prospect of successfully defending all or a part of, the plaintiff’s claim, and secondly whether there is no need for a trial of the claim or part of the claim.
Whether the defendant has no real prospect of successfully defending all or part of the plaintiff’s claim requires the court to assess whether there is a realistic, as opposed to fanciful, prospect of success.[1] There must be a higher degree of certainty about the ultimate outcome of the proceedings before summary judgment should be given.[2]
[1]Deputy Commissioner of Taxation v Salcedo [2005] QCA 227.
[2]Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552.
The material filed demonstrates that the premiums were calculated in accordance with the gazette notice and that the defendant was paying the premiums until it cancelled the policy. Upon reassessment, the defendant has not paid any of the premium. The defendant has not filed any affidavit material or outline; indeed, the defendant does not oppose the making of the order for summary judgment. There is nothing in the material filed to suggest that the defendant has any real prospect of successfully defending all or part of the plaintiff’s claim.
As to the second question – whether there is no need for a trial of the claim – that requires the court to exercise great care and proceed with caution, having regard to the seriousness of a decision to summarily terminate a proceeding and deny a party the opportunity to take advantage of the usual interlocutory processes and present its case at trial.[3]
[3]Bolton Property v JK Investments (Australia) Pty Ltd [2009] QCA 135.
The defence filed comprises entirely of admissions and non-admissions, save for the denial that the premium has not been calculated in accordance with the relevant legislation and using actual wages. As indicated, no material has been filed by the defendant identifying what they say the actual wages are, as opposed to what the defendant’s staff advised the plaintiff in correspondence which has been exhibited by the plaintiff. The material filed makes clear the premium was calculated in accordance with the legislation. There is nothing in the material filed by the defendant indicating that the facts are disputed. There is nothing in the material before me to demonstrate that there is a need for the defendant to be given an opportunity to complete interlocutory steps, adduce evidence or test the evidence of witnesses in the usual way.
The defendant has not filed any affidavit material. There is therefore nothing to suggest that there is a viable defence which, although pleaded in a deficient way, could be legitimately advanced by the amendment of the pleadings. It seems to me that the deficiencies in the defence are incurable, and as much is reflected by the attitude that the defendant has taken to the application. So accordingly, I will order summary judgment for the plaintiff in the amount of $192,499.49, plus interest in the sum of $6,335.60.
The plaintiff applies for its costs, on the indemnity basis, effectively on the basis that there has been an unreasonable delay because of the way in which the defendant has conducted itself. Relevant to the exercise of my discretion in this regard is that the notice of claim was filed only some six months ago. The position the defendant has taken today, effectively not opposing an order for summary judgment, means that the matter has been finalised relatively quickly.
Upon receipt of the claim and statement of claim, the defendant sought further and better particulars which were provided after a period, it seems, of approximately two months. The defendant then filed its defence. There was something of a delay in that occurring, brought about by a lockdown in August of this year, as a consequence of the COVID-19 pandemic. The plaintiff then brought this application for summary judgment on the 1 November of this year.
The position the defendant has taken is to not oppose the order for summary judgment or the order for interest to be paid. I do not consider that the conduct of the defendant could be described as unreasonable. I do not consider it unreasonable for them to have sought further and better particulars. Even given that the wages and superannuation figures were provided by the defendant, nonetheless there are complicated calculations that were required to be made. That might have occurred by way of software. But nonetheless, they are complicated calculations for which WorkCover themselves have sought their own legal advice.
With respect to those calculations, it was not, in those circumstances, unreasonable for the request for further and better particulars. There has not been a lengthy delay in the matter at all. Indeed, the position that the defendant has taken today has meant the matter can be finalised without further delay. In particular, the defendant did not seek an adjournment or leave to replead, and has not opposed the application for summary judgment. The awarding of indemnity costs is a significant step for this court to take. I do not consider that there has been exhibited any real unreasonableness in the way the defendant has conducted itself. I will order, in the usual course, costs to follow the event. The defendant is to pay the plaintiff’s costs on the standard basis.