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ARTICLE · 24 MARCH 2013

Non-compliance with section 302(2) WCRA. Is this sudden death?

Cooper Grace Ward
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Non-compliance with the section's 60-day time limit does not prevent a claimant pursuing a common law damages claim.

AustraliaEmployment and HR
Brady Cockburn
Brady Cockburn
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Hughes v Impulse Entertainment Pty Ltd & WorkCover Queensland [2013] QDC 21

This recent case provides a definitive answer to a question that has arisen numerous times in practice, but has never been answered judicially: Does non-compliance with the 60 day time limit in section 302(2) of the Workers' Compensation & Rehabilitation Act (WCRA) prevent a claimant from pursuing a common law damages claim where the claim has otherwise been brought within the limitation period set by the Limitation of Actions Act 1974 (LAA)?

The answer, put simply, is 'no'. That had also been assumed to be the case, on the basis that a claimant could simply serve another notice of claim and re-start the pre-proceedings process afresh. However, two contrary arguments existed: Re-starting the claim would be an abuse of process. Alternatively, section 302(2) created a new limitation period, overriding the one in the LAA.

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