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  •   Notable Unreported Decision

McDonald v Broadspectrum (Australia) Pty Ltd

 

[2019] QSC 313

SUPREME COURT OF QUEENSLAND

CITATION:

McDonald v Broadspectrum (Australia) Pty Ltd [2019] QSC 313

PARTIES:

DOROTHY MCDONALD

(plaintiff)

v

BROADSPECTRUM (AUSTRALIA) PTY LTD

ACN 093 114 553

(second defendant)

FILE NO:

BS No 6927 of 2018

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

20 December 2019

DELIVERED AT:

Brisbane

HEARING DATE:

2 October 2019; Further submissions received 11, 18, 22 and 24 October 2019

JUDGE:

Bradley J

ORDER:

  1. The application filed on 9 August 2019 is dismissed.
  2. The second defendant pay the plaintiff’s costs of the application.

CATCHWORDS:

PRIVATE INTERNATIONAL LAW – CHOICE OF LAW – TORTS AND SIMILAR – PLACE OF WRONG –RESTRAINT OF PROCEEDINGS – OF LOCAL PROCEEDINGS: CLEARLY INAPPROPRIATE FORUM – LAW GOVERNING DISPUTE – where the plaintiff commenced proceedings in this court for damages for personal injuries alleged to have been suffered during the course of her employment with the second defendant as a teacher at the Regional Processing Centre in Nauru – where the second defendant contends that the consequence of s 324 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) is that the law of New South Wales is the substantive law applicable to the claim, as the plaintiff had previously brought a claim against the second defendant for workers’ compensation under the New South Wales scheme – where the second defendant seeks a declaration that the law of New South Wales is the substantive law applicable to the plaintiff’s claim and an order staying the proceeding pending transfer to the Supreme Court of New South Wales – whether the plaintiff’s claim is governed by the law of New South Wales or the law of Nauru – whether the Supreme Court of New South Wales is a more appropriate forum than this court for the determination of the claim

Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 324(1)

Amaca Pty Ltd v Frost (2006) 67 NSWLR 635, cited

Attorney General of Belize v Belize Telecom Ltd [2009] 1 WLR 1988, cited

BHP Billiton Limited v Schultz (2004) 221 CLR 400, cited

BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266, applied

Byrne v Australian Airlines Ltd (1995) 185 CLR 410, cited Distillers Co (Biochemicals) Ltd v Thompson [1971] AC 458, cited

John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503, applied

Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491, applied

Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538, applied

COUNSEL:

S J Keim QC, with M E Holmes, for the plaintiff

P J O’Connor for the second defendant

SOLICITORS:

Maurice Blackburn for the plaintiff

Holman Webb for the second defendant

  1. [1]
    The plaintiff Dorothy McDonald claims damages for personal injuries alleged to have been suffered while employed by the second defendant (Broadspectrum) as a teacher at the Regional Processing Centre in the Republic of Nauru.  Broadspectrum has applied for a declaration that the substantive law applicable to her claims is the law of New South Wales and for an order setting aside or staying and transferring her claims to the Supreme Court of that State.
  2. [2]
    As the relief sought by Broadspectrum indicates, the key issue is about the substantive law that applies to Ms McDonald’s claims.

Facts

  1. [3]
    Ms McDonald lives in Queensland and has done so for many years, including during the period material to her claims.  She is a qualified teacher with experience teaching English as a second language in Indonesia, Saudi Arabia, Vietnam, Australia and Nauru.  She is now 69 years of age. 
  2. [4]
    In January 2013 she was employed by the Salvation Army[1] as a teacher at the Centre in Nauru. On about 13 March 2014, Ms McDonald commenced employment with Broadspectrum in the same role.  She continued to work as a teacher at the Centre until about November 2015.  After returning to Australia at the end of November 2015, she did not work again at the Centre.  Subsequently, her employment with Broadspectrum was terminated.
  3. [5]
    While employed by Broadspectrum, Ms McDonald worked 12 hour days seven days a week for two or three week periods at Nauru.  She spent intervening periods of two or three weeks in Australia.  When in Nauru, her accommodation was in rooms in demountable buildings, arranged and controlled by Broadspectrum.  Ms McDonald claims to have been exposed to mould and mould spores grown on the walls and ceilings of these rooms.  She says this exposure caused her personal injuries.

The proceeding

  1. [6]
    On 27 June 2018, Ms McDonald filed a statement of claim in this court.  She alleged Broadspectrum owed her duties of care and breached them by its negligence.  She also alleged it was an implied term of her contract of employment that Broadspectrum would take reasonable care for her safety during the course of her employment.  She said Broadspectrum breached the implied term by its negligence. 
  2. [7]
    On 26 July 2019, Broadspectrum filed a conditional notice of intention to defend, disputing the jurisdiction of the court to entertain Ms McDonald’s claims without its consent, and contending the proceeding was irregular because:

“1. These proceedings have been commenced in contravention of the substantive law of New South Wales in that the Plaintiff has contravened or failed to comply with sections 262, 280A, 313, 315 and 318A of the Workplace Injury Management Act 1998 (NSW).

  1. The Second Defendant says that the Supreme Court of New South Wales is the appropriate forum to determine this matter.”
  1. [8]
    On 9 August 2019, Broadspectrum filed the application the subject of these reasons. 
  2. [9]
    On 1 October 2019, the application was heard.  Mr O’Connor of counsel appeared for Broadspectrum and Mr Keim SC appeared with Mr Holmes of counsel for Ms McDonald. 

Broadspectrum’s submissions

  1. [10]
    Mr O’Connor put a number of propositions to the court.

The operation of the WCRA

  1. [11]
    First, Mr O’Connor contended that section 324(1) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCRA) applied to Ms McDonald’s claims with the consequence that the law of New South Wales was the substantive law that governed whether she could make any claim for damages and, if she could, the determination of the claim. 
  2. [12]
    At the time Ms McDonald commenced this proceeding, section 324(1) was in these terms:

“324 The applicable substantive law for work injury claims

  1. (1)
    If compensation is payable (whether or not it has been paid) under the statutory workers’ compensation scheme of a State in relation to an injury to a worker, the substantive law of that State is the substantive law that governs –
  1. (a)
    whether or not a claim for damages in relation to the injury can be made; and
  1. (b)
    if it can be made, the determination of the claim.”

Ms McDonald’s claim under the New South Wales workers’ compensation regime

  1. [13]
    It appears that Ms McDonald notified Broadspectrum of her health situation sometime before January 2016.  On 22 January 2016, Broadspectrum wrote to Ms McDonald effectively conceding that, subject to further investigation of the matter, it was liable to pay her provisional weekly payments and medical expenses under the workers’ compensation regime in New South Wales.  Broadspectrum also quantified the rate at which it would pay compensation.  Ms McDonald was paid workers’ compensation at this rate for the period from 10 December 2015 to 25 April 2016.   Then the payments ceased. 
  2. [14]
    In August 2016, Ms McDonald obtained a report from Professor Wakefield concluding that “her work environment predisposed her to developing sinus and respiratory infections, which in turn lead to a chronic fatigue or post infection fatigue syndrome.”     
  3. [15]
    In November 2016, Ms McDonald made a workers’ compensation claim against Broadspectrum, seeking weekly compensation payments.  Broadspectrum contested her claim.  It denied Ms McDonald had suffered an injury, denied she was incapacitated by it, and denied her employment was a substantial contributing factor to her injury.  An attempt to conciliate the issue was unsuccessful.
  4. [16]
    The workers’ compensation claim proceeded to arbitration on 20 March 2017 in the Workers Compensation Commission.  On 2 June 2017, the arbitrator made a determination.  He found that Ms McDonald had suffered an injury and had been totally incapacitated as a consequence of it.  He also found she had a persuasive case that there was a relationship between her employment (particularly during her last year in Nauru) and her incapacity for work.  He found Ms McDonald was entitled to weekly payments of compensation pursuant to the Workers Compensation Act 1987 (NSW) and ordered Broadspectrum pay weekly compensation to Ms McDonald at the rate appropriate under that Act. 
  5. [17]
    In these circumstances, Mr O’Connor respectfully submitted the court would find that section 324(1) of the WCRA was “enlivened”, with the effect that the substantive law that governs the claims is that of New South Wales.

Principles governing choice of law in foreign torts

  1. [18]
    As Mr Keim SC identified, Ms McDonald’s negligence claim is a foreign tort, not alleged to have been committed in Australia.  In her statement of claim, Ms McDonald alleges she was employed by Broadspectrum as a teacher at the Centre in Nauru.  It was there she says she was exposed to and inhaled mould and mould spores while working, living and spending time in tents and structures occupied or controlled by Broadspectrum. Amongst other things, Ms McDonald alleges Broadspectrum failed to provide a safe place or system of work, to warn her about the mould contamination, to provide protective clothing or respirators, to prevent exposure, and to provide adequate ventilation, in each instance in Nauru. 
  2. [19]
    Her claim for damages for breach of an implied term of her employment contract depends on the same alleged conduct of Broadspectrum in Nauru. 
  3. [20]
    Matters that affect the existence, extent or enforceability of rights or duties of the parties to an action are concerned with issues of substance.[2]   They are determined by the lex loci delicti.  There is no “flexible exception” to the choice of that law as the appropriate law to be applied in the forum where the claim is made.[3]
  4. [21]
    In substance Ms McDonald’s alleged causes of action arose in Nauru.[4]  That is where Broadspectrum is alleged to have done what its duty forbid and failed to do what its duty required.[5]  It is where Ms McDonald alleges she was exposed to the risk.[6]  It was in Nauru that Ms McDonald alleged the contractual duties were to be performed and, therefore, where they were breached.  
  5. [22]
    It follows that the lex loci delicti for Ms McDonald’s claims is the law of the Republic of Nauru. 

Whether s 324(1) of the WCRA operates to alter the substantive law applicable to a foreign tort

  1. [23]
    In later written submissions, Mr O’Connor persisted with the submission that s 324(1) of the WCRA operated to alter the substantive law applicable to a claim for a foreign tort brought in a Queensland court.  He submitted that the Queensland legislators’ purpose in enacting section 324(1) was “clear”.  He contended the purpose was to overrule the decisions of the High Court in Zhang and Rogerson, which found the lex loci delicti to be the substantive law of a cause of action for a foreign tort.
  2. [24]
    No such purpose is evidenced by the terms of s 324(1).  The scope of the provision does not extend beyond an injury in relation to which “compensation is payable under the statutory workers’ compensation scheme of a State”.  The relevant compensation schemes, in Queensland and New South Wales, each exclude from their scheme an employer’s liability arising under the law of another country.  Such a liability is expressly excluded from those for which an employer must be insured (or self-insured).  In these ways, the section indicates a purpose confined to dealing with interstate torts. 
  3. [25]
    The WCRA is not part of the law of Nauru.  It follows that section 324 does not bear upon the existence, extent or enforceability of Ms McDonald’s claims.  It does not operate to make the substantive law of New South Wales the substantive law that governs whether Ms McDonald can make her claims or their determination. 

Alleged estoppel

  1. [26]
    In later written submissions, it was contended for Broadspectrum that Ms McDonald was “estopped from seeking to alter her position” because she had made “a deliberate decision … to prosecute her claim for compensation when and where it was made.”  As best this may be understood, it appears to be a submission that because Ms McDonald successfully contested Broadspectrum’s cessation of weekly compensation payments, she may not now assert that her claim is for the commission of a foreign tort. 
  2. [27]
    There is no evidence before the court that Broadspectrum altered its position in any respect in reliance upon any representation by Ms McDonald (including the alleged “deliberate decision”).  Rather, it appears Broadspectrum resisted the whole of Ms McDonald’s workers’ compensation claim and did only what it was ordered to do by the arbitrator.    
  3. [28]
    No submissions were put concerning the status or effect of the arbitrator’s determination of 2 June 2017.  It was not put or shown that the parties were bound in some way by the determination or that it gave rise to any res judicata. It seems unlikely that any right to claim damages at common law or under the law of another country could have been affected by the determination, as it was limited to the operation of the statutory workers’ compensation scheme.[7] 

The operation of the NSW Acts

  1. [29]
    Mr O’Connor’s second submission referred to sections of the Workplace Injury Management Act 1998 (NSW) and of the Workers Compensation Act 1987 (NSW) (together the NSW Acts), which he contended Ms McDonald had breached by commencing this proceeding. 
  2. [30]
    For the reasons set out above, the WCRA does not operate to make the law of New South Wales (including the NSW Acts) the substantive law for Ms McDonald’s claims.  No other law was identified that could have such an effect.  It follows that neither of the NSW Acts governs Ms McDonald’s claims and Ms McDonald has not breached either Act by filing her statement of claim in this court.  

An implied term of the employment contract

  1. [31]
    Thirdly, Mr O’Connor relied on Ms McDonald’s contract of employment.
  2. [32]
    Broadspectrum set out certain terms and conditions of Ms McDonald’s employment in a letter dated 17 March 2014, which she signed on 19 March 2014.  These included:

“Worker’s Compensation: Workers compensation cover will be affected in New South Wales for the duration of your employment pursuant to this letter of engagement and your entitlements will be regulated by the laws applying in NSW.”

“Applicable Laws: This letter of engagement is governed by and is to be construed in accordance with the laws in force in NSW.”

  1. [33]
    At the hearing, Mr O’Connor submitted that, in light of the “Worker’s Compensation” term and the “Applicable Laws” term, the court should find there was an implied term in Ms McDonald’s employment contract to the effect that she agreed to be bound by the laws of New South Wales with respect to workers’ compensation, including the provisions of the NSW Acts that prohibited the bringing of a claim without undertaking certain prescribed steps. 
  2. [34]
    The force of this third submission might have been diminished by the admission that Broadspectrum had not effected workers’ compensation cover for Ms McDonald at all.  Instead, it had acted as a “self-insurer”. 
  3. [35]
    At Mr O’Connor’s request, the court made directions granting Broadspectrum leave to file and serve further written submissions and supporting evidence as to its status as a self-insurer under the NSW Acts.  The further submissions were filed on 11 October 2019.  A further affidavit of Ms Sutton was filed on 18 October 2019, exhibiting a copy of the “Self-Insurer Licence” issued to Broadspectrum[8] for three years ending 30 September 2015.[9] 
  4. [36]
    The further submissions identified that under the NSW Acts an employer’s obligation to obtain a policy of insurance or indemnity was limited to “the full amount of [the employer’s] liability under this Act to all workers employed” by the employer.[10]  An employer’s liability was confined to a liability to pay weekly workers’ compensation payments and health expenses.  It did not include any liability arising “independently of this Act”, such as a liability to pay common law damages to an injured worker or any liability under the WCRA.  This reinforced the submission made by Mr Keim SC at the hearing that the obligation to obtain workers’ compensation insurance and the liabilities a self-insurer was obliged to cover, expressly exclude “a liability arising under the law of another country”.[11] 
  5. [37]
    It follows that: the workers’ compensation cover Broadspectrum agreed to effect in New South Wales would have excluded cover for a claim for damages for contravention of the law of Nauru; and the liability of Broadspectrum for injuries received by workers it employed while a self-insurer also excluded liability for such damages. 
  6. [38]
    There was no reason to question the lawfulness of Broadspectrum’s arrangements, in this respect, under the laws of New South Wales.  However, I reject the submission that Ms McDonald impliedly agreed to forego her right to bring her claims, because Broadspectrum agreed to effect insurance cover – that it contends it was not bound to effect and did not effect – when the cover (or equivalent self-insurance) would not respond to her claims.    
  7. [39]
    The implied term proposed by Broadspectrum does not meet the accepted criteria for implication of a term.[12]  The employment contract (as a whole) and each of the identified terms[13] is capable of operating effectively without the implied term, so it is not necessary to give the contract or the terms business efficacy.  It is not a term that “goes without saying”.  Given the exclusion of foreign law claims from the statutory workers’ compensation scheme, it is not necessary to imply the term to address an unexpected contingency or gap or to spell out what the contract actually meant.[14]  It is not a legal incident of the particular class of contract,[15] because where it applies to an employment relationship its force is drawn from statute.
  8. [40]
    It would be remarkable if the common law right of a person who suffers an injury to sue the tortfeasor for damages could be extinguished by an implied term, when none of the usual criteria for implication is met. 

Other matters

  1. [41]
    A number of other matters were raised, in passing, in the course of oral submissions.  It is convenient to deal with each briefly.
  2. [42]
    Ms McDonald did not plead that the law of Nauru was the substantive law that applied to her claims.  As the High Court observed in Zhang,[16] a party who relies on a foreign lex loci delicti must allege and, if necessary, prove it.  Mr Schonell, a solicitor for Ms McDonald, deposed that he was instructed to file an amended statement of claim pleading, inter alia, that the substantive law to determine Ms McDonald’s claims against Broadspectrum are “the laws of the Republic of Nauru.”  The proposed plea is based on matters already pleaded in the statement of claim.  In the circumstances, the lacuna in the pleading is of no lasting significance.
  3. [43]
    There was some evidence before the court of the law of Nauru.  It included a copy of the Workers’ Compensation Act 1956 (Nauru).[17] 
  4. [44]
    The Nauru Act obliges an employer to obtain a policy of insurance or indemnity for its liability under the Nauru Act to all workers it employs.  The policy must be from an insurer approved by the Nauruan Cabinet for the purposes of the Nauru Act.[18]  It appeared that Broadspectrum did not comply with this part of the Nauru Act. 
  5. [45]
    By its terms, the Nauru Act does not affect the right of an injured worker to commence proceedings against an employer to recover damages for which the employer is legally liable “independently of this Act” where the worker has not received compensation under the Nauru Act.[19] 

Conclusion on the substantive law

  1. [46]
    I conclude that the substantive law applicable to each of Ms McDonald’s claims is that of the Republic of Nauru.  It follows Ms McDonald was not bound to comply with any mandatory requirement under the NSW Acts before she could commence this proceeding. 
  2. [47]
    The declaration sought by Broadspectrum should not be made.  Nor is Broadspectrum entitled to an order setting aside the proceeding for any failure by Ms McDonald to comply with the substantive law of New South Wales.

Stay of proceedings pending transfer to NSW

  1. [48]
    The alternative relief Broadspectrum sought was an order staying the proceeding pending its transfer to the Supreme Court of New South Wales.
  2. [49]
    In his later written submissions, Mr O’Connor explained that the purpose of transferring the proceeding to a court in New South Wales was to enable Broadspectrum to “make an application for dismissal of the proceedings”. This was consistent with the evidence of Ms Sutton, a solicitor for Broadspectrum, to the effect that she anticipated her “instructions would be for the matter to be struck out” for non-compliance with the steps required by the NSW Acts.[20] 
  3. [50]
    Given my conclusions about the substantive law, the intended purpose of the transfer was misconceived and cannot be achieved.
  4. [51]
    Although Broadspectrum’s application was not brought under the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), Mr O’Connor’s written submissions refer to it.  An application under section 5(2)(b)(ii) or (iii) of that Act requires a proceeding be heard in the court dictated by the interests of justice, usually the more appropriate forum.[21] 
  5. [52]
    In her affidavit, Ms Sutton swore that proceedings in this court “cannot be conveniently or expeditiously conducted when subject to the inter-state dictates, requirements or processes.”  It is difficult to approach this contention.  The only evidence of expertise or experience offered in support of the contention is that Ms Sutton is “a Lawyer and Partner of Holman Webb Lawyers, Sydney.”  Her years and work in practice are not disclosed.  The court knows nothing of her professional experience in this court or in the Supreme Court of New South Wales.  Perhaps the statement might be understood as an assertion that a transfer of the proceeding would suit the convenience and experience of Broadspectrum’s solicitor.  That would not be a compelling consideration for a transfer. 

Consideration of the proposed stay of proceedings

  1. [53]
    The matters relevant to a transfer may be summarised in this way.
  2. [54]
    The substantive law to be applied is that of Nauru, so that it is not a substantive law peculiar to either Queensland or New South Wales.  The common law of Nauru appears to be that in force in England on 31 January 1968 to the extent that it is not repugnant to or inconsistent with any statute law applied in Nauru.[22]
  3. [55]
    No forensic advantages or disadvantages conferred by the procedural laws of this court or the Supreme Court of New South Wales were identified.
  4. [56]
    Ms McDonald chose this court when she commenced the proceeding, presumably because she lives in this State.  Her substantive connections with this forum are as a resident.  It was from her home on the Sunshine Coast that she travelled to work in Nauru, but the subject matter of the claims is confined to Nauru.
  5. [57]
    It is likely more convenient for Ms McDonald to come to court in Brisbane, than in Sydney.  She is an individual and the cost to her of litigating in another State would likely be higher than in this court.  Any additional costs might not be recovered in whole by any award of costs.   
  6. [58]
    Her treating doctors are here, who may be witnesses.  Professor Wakefield practises in Darlinghurst, Sydney.  Ms Sutton identified two other experts who have provided reports, Dr Cameron Jones and Dr Brian Murphy, who are both based in Victoria.  The location of the medical witnesses may not be significant.  Such evidence is given by written report.  If required for cross-examination, this is commonly done by telephone or video-link.
  7. [59]
    Broadspectrum has its head office in Macquarie Park, New South Wales.  Evidently it has conducted operations in locations outside that state – even as far away as in Nauru.  It has an office in South Brisbane.  It is a significant company or part of a significant group of companies.  It is likely better able to bear the burden of any additional cost of conducting its defence in this court than Ms McDonald is with respect to her additional costs of proceeding in the Supreme Court of New South Wales. 
  8. [60]
    Without identifying them, Ms Sutton deposed that Broadspectrum’s anticipated witnesses presently reside in Newcastle.  The flight time between Newcastle and Brisbane is about 1 hour and 15 minutes.   From Newcastle to Sydney would be about 40 minutes.  
  9. [61]
    Broadspectrum did not submit a trial in this court would be oppressive, in the sense of seriously and unfairly burdensome, prejudicial or damaging, or it would be vexatious, in the sense of productive of serious and unjustified trouble and harassment to Broadspectrum. 
  10. [62]
    For Ms McDonald, it was submitted that under the Uniform Civil Procedure Rules 1999 (Qld), “procedural steps are streamlined”, there is “full disclosure in personal injuries actions”, alternative dispute resolution may be ordered and the court’s case flow review process assists the progress of a proceeding to resolution or trial.  It was submitted that these matters made an earlier trial likely.  No submissions were put about the procedures of the Supreme Court of New South Wales, but it seems unlikely the proceeding, if transferred, would suffer any particular procedural disadvantage.  
  11. [63]
    It was also submitted that there would be “additional, duplicated and thrown away costs” if the proceeding were to be transferred.  The matter is at a very early stage.  No defence has been filed.  With respect, it seems unlikely that there would be cost consequences of any material significance.  

Conclusion on the proposed stay of proceedings

  1. [64]
    Taking all of these matters into account, it is not shown that the Supreme Court of New South Wales is a more appropriate forum than this court or that in any broader sense the interests of justice support transfer of the proceeding to that court. It is not shown that this court is a clearly inappropriate forum so as to justify staying the proceeding in this court.[23]

Disposition of the application

  1. [65]
    It follows that Broadspectrum’s application should be dismissed.   Broadspectrum should pay Ms McDonald’s costs of the application.

Footnotes

[1] Ms McDonald claimed against Salvation Army New South Wales (Property Trust), as the first defendant, but appears to have discontinued that part of her claim.

[2] John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 (Rogerson) at 543 [99] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).

[3] Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491 (Zhang) at 520 [75] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).

[4] Distillers Co (Biochemicals) Ltd v Thompson [1971] AC 458 at 468, approved in Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 at 606 [43] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

[5] Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 567 (Mason CJ, Deane, Dawson and Gaudron JJ).

[6] Amaca Pty Ltd v Frost (2006) 67 NSWLR 635 at 645 [44] (Spigelman CJ, Santow and McColl JJA agreeing).

[7] This does not exclude the possibility that, if Ms McDonald succeeds in either of her claims in this proceeding, the amount of damages she receives may be affected by the weekly compensation payments, paid as a result of the arbitrator’s determination.  For example: she may be required to repay the workers’ compensation payments from any damages recovered; or her damages may be reduced by the amount she received through the payments.

[8] Issued under s 211 of the Workers Compensation Act 1987 (NSW). 

[9] Supplementary submissions were filed for Ms McDonald on 18 October 2019.  These were followed by a “response” from the legal representatives of Broadspectrum, filed on 22 October 2019 and a “further supplementary outline” for Ms McDonald, filed on 24 October 2019.  These additional submissions – for which no leave had been granted – deal with matters other than the status of Broadspectrum as a self-insurer.  Nonetheless, where they concern the issues in the application I have taken them into account and, where appropriate, dealt with them in these reasons.

[10] Workers Compensation Act 1987 (NSW) section 20(1).

[11] Workers Compensation Act 1987 (NSW), s 155(1), s 213(7)(b).

[12] BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283 (Lord Simon of Glaisdale, Viscount Dilhorne and Lord Keith of Kinkel).

[13] “Worker’s Compensation” and “Applicable Laws”.

[14] Attorney General of Belize v Belize Telecom Ltd [2009] 1 WLR 1988 at 1994 [21] (Lord Hoffmann, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood).

[15] Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 420 (Brennan CJ, Dawson and Toohey JJ).

[16] (2002) 210 CLR 491 at 519 [71] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ), citing Dicey and Morris on The Conflict of Laws, 13th ed (2000), vol 2, p 1568.

[17] The version in evidence was that in force from 15 April 2011, prepared and published by the Nauru Parliamentary Counsel.  It comprises the Workers’ Compensation Ordinance 1956, as amended by the Executive Council Ordinance 1966, the Ordinances Revision Ordinance 1967, the Adaption of Laws Order 1969, and the Statute Law Revision Act 2011.

[18] See section 20(1).

[19] See, e.g., section 19. As no compensation has been paid to Ms McDonald under the Ordinance, it appears no relevant time period fixed by the Ordinance has expired.

[20] The affidavit was filed by leave on 1 October 2019.

[21] BHP Billiton Limited v Schultz (2004) 221 CLR 400 at 420-421 [13] (Gleeson CJ, McHugh and Heydon JJ). 

[22] See: Custom and Adopted Laws Act 1971 (Nauru), art 4, 5.

[23] Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 565 (Mason CJ, Deane, Dawson and Gaudron JJ).

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Editorial Notes

  • Published Case Name:

    McDonald v Broadspectrum (Australia) Pty Ltd

  • Shortened Case Name:

    McDonald v Broadspectrum (Australia) Pty Ltd

  • MNC:

    [2019] QSC 313

  • Court:

    QSC

  • Judge(s):

    Bradley J

  • Date:

    20 Dec 2019

  • White Star Case:

    Yes

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2019] QSC 31320 Dec 2019Second defendant's application for a declaration that the substantive law applicable to the plaintiff's claims is the law of New South Wales and for an order setting aside or staying and transferring the plaintiff's claims to the Supreme Court of that State; application dismissed: Bradley J.

Appeal Status

No Status
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