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  4. Salisbury v Farley Constructions Pty Ltd & Workers' Compensation Board of Queensland - [2000] QDC 51

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Salisbury v Farley Constructions Pty Ltd & Workers' Compensation Board of Queensland[2000] QDC 51

Salisbury v Farley Constructions Pty Ltd & Workers' Compensation Board of Queensland[2000] QDC 51

DISTRICT COURT OF QUEENSLAND

CITATION:

Salisbury v. Farley Constructions Pty Ltd & Workers’ Compensation Board of Queensland [2000] QDC 051

PARTIES:

JOHN SALISBURY (Plaintiff)

v.

FARLEY CONSTRUCTIONS PTY LTD (Defendant)

And

WORKERS’ COMPENSATION BOARD OF QUEENSLAND (Third Party)

FILE NO/S:

1580/96

DIVISION:

 

PROCEEDING:

Hearing

ORIGINATING COURT:

District Court Brisbane

DELIVERED ON:

8 June 2000

DELIVERED AT:

Brisbane

HEARING DATE:

20 and 21 March 2000

JUDGE:

Shanahan DCJ

ORDER:

Find the representations made by the third party amounted to an estoppel in the circumstances.  The third party is estopped as against the defendant from denying its liability to indemnify the defendant in the plaintiff’s action.  The counterclaim by the third party is dismissed

CATCHWORDS:

INSURANCE – Indemnity insurance – Subrogation

ESTOPPEL – By Representation  - Statutory Provisions

Application by Workers' Compensation Board for declaration that not liable to subrogate – Workers' Compensation Act definition s.5 ‘Accident Insurance’ – whether obligation to insure under New South Wales law prevented subrogation – whether representations made by Workers' Compensation Board amounted to estoppel

Burrows v. The Workers' Compensation Board of Queensland (Court of Appeal, Queensland, Appeal No. 6694/96, 12 June 1997)

Wilson v. Austral Motors (Queensland) Pty Ltd [1983] 2 Qd.R. 774

Day Ford Pty Ltd v. Sciacca [1990] 2 Qd.R. 209

The Commonwealth v.Verwayen (1990) 170 CLR 394

Workers' Compensation Act 1990 (Queensland)

Workers' Compensation Act 1987 (New South Wales)

COUNSEL:

Williams for plaintiff

S. Sapsford for defendant

K. Holyoak for third party

SOLICITORS:

K M Splatt & Co for the plaintiff

McCowans Solicitors for the defendant

Bain Gasteen for the third party

  1. [1]
    This action was commenced by plaint D1580 of 1996 between John Salisbury as plaintiff and Farley Constructions Pty Ltd as defendant. The Workers' Compensation Board of Queensland (now WorkCover) indicated that it would not subrogate the defendant in this action and was joined as a third party by the defendant.
  1. [2]
    The third party applied that a trial of the issues between the defendant and the third party be heard separately from, and prior to, a trial of the issues between the plaintiff and the defendant. Judge Boyce Q.C. D.C.J., on 20 January 2000 ordered that the questions in the pleadings in the third party proceedings between the defendant and the third party, be decided separately before the trial of the proceedings between the plaintiff and the defendant pursuant to Uniform Civil Procedure Rule 483.
  1. [3]
    By further amended defence and counterclaim of the third party to the amended third party notice of the defendant (filed 15 March 2000) the third party claims an order declaring that the third party is not obliged to indemnify the defendant under the Workers' Compensation Act 1990 and policy number NW950999305, in respect of the plaintiff’s claim pending in the Brisbane District Court under Number D1580 of 1996 and such further, other, or consequential declaratory or other relief as to the court seems to be just and appropriate. 
  1. [4]
    The issues to be decided are whether or not the third party is liable to indemnify the defendant in the action commenced by the plaintiff for personal injuries, and in the event that the third party is not liable pursuant to the Workers' Compensation Act 1990 under the cover of a policy of accident insurance, whether the conduct and representations allegedly made by the third party amount to an estoppel, preventing the third party denying its liability to subrogate the defendant in the plaintiff’s action. 
  1. [5]
    Decisions on these issues depend on the resolution of a number of factual disputes and an interpretation of the Workers' Compensation Act 1990 as it stood on the date of the accident (6 June 1995). 

Factual Issues

  1. [6]
    The plaintiff, a steel fixer, was injured on 6 June 1995 while working for the defendant at a construction site at Tweed Heads in New South Wales. The defendant company, Farley Constructions Pty Ltd, was at the relevant times a Queensland based company engaged in a number of construction projects on the Gold Coast. There were projects at Labrador, Nerang, Chevron Island and Mermaid Beach. In May 1995, the company was awarded a contract to construct car parks and extensions to the Tweed Mall Shopping Centre (t.36).
  1. [7]
    The plaintiff gave evidence that he was contacted by Mr. Farley, a director of the defendant company, on approximately 15 May 1995 in relation to employment as a steel fixer (t.8). His evidence was that he was offered employment by telephone as a steel fixer at a job site at Labrador (t.9). In a second phone call he was told that the steel would not arrive at the Labrador site as required and, if he was agreeable, he could work at a job site at the Tweed (t.9). Mr. Farley told the plaintiff that he had a lot of jobs coming up and on the go so he had plenty of work available for the plaintiff. The plaintiff was told that the jobs were at Mermaid Beach, Labrador and the Tweed Mall. He agreed to commence work for Mr. Farley and started on 16 May at the Tweed Mall site.
  1. [8]
    The plaintiff’s evidence was that he received these telephone calls at his sister’s residence at Lower Beechmont in Queensland (t.8). He was living at his sister’s residence at the time (t.14). On the morning of 16 May 1995 he hitchhiked from Lower Beechmont to Nerang, a 15 minute drive (t.14). Mr. Farley picked him up at Nerang and drove him to the Tweed Mall job site (t.10). Mr. Farley dropped him back in the afternoon. The same arrangements occurred on 17 May 1995. On 18 May, Mr. Farley drove him to the Tweed Mall site, but the plaintiff only worked for an hour when he was picked up by his girlfriend in order to submit Social Security forms (t.10).
  1. [9]
    He was next contacted on 1 June 1995 to again work at the Tweed Mall site (t.10). At that time he was still residing at Lower Beechmont. His sister took him to work that day, and that day he moved to his parent’s place at Bilambil Heights (New South Wales) because that was closer to the job site. He worked from 1 June until 6 June when the accident occurred. The nature of steel fixing employment, as described by the plaintiff, was that it was not continuous but depended on the delivery of the steel and the various stages of the building process (t.11).
  1. [10]
    Under cross-examination the plaintiff stated that on 15 May 1995 he had rung an acquaintance, Darcy Cavanagh, to see if he could get some work. Mr. Cavanagh told him that he would get Mr. Farley to contact him (t.14). He stated he met Mr. Farley at McDonalds at Nerang on the mornings he was transported to work. He had never travelled to Mr. Farley’s house at Nerang (t.15). He was cross-examined about the likelihood of hitchhiking to meet Mr. Farley but was adamant that this was what he did (t.15-16). He was also adamant that he was contacted at his sister’s house rather than that of his girlfriend who resided in New South Wales (t.16).
  1. [11]
    The plaintiff was cross-examined on a form claiming workers' compensation filled out on 13 June 1995, where a box was ticked “yes” to the question “Were you residing outside Queensland when you commenced employment with this employer”. He explained that he meant that he was living on the border of New South Wales and Queensland when the accident happened (t.24). The form was tendered (Exhibit 2).
  1. [12]
    The plaintiff was cross-examined about speaking to a Mr. Dank, an investigator employed by the Workers' Compensation Board, on 5 October 1995. Mr. Dank reduced the conversation to a statement (Exhibit 28). The plaintiff could not remember the detail of that conversation (t.27-33). It was submitted by the third party that the differences between that statement (which the plaintiff declined to sign) and the plaintiff’s evidence raised concerns about the plaintiff’s credibility. This was particularly so in relation to passages in the statement which indicated the job offer came from Darcy Cavanagh and was on the construction of a car park at the Tweed Mall Shopping Centre. Particular reference was made to the following passage:

“There was work on a job at Labrador and I was offered work there after the initial two days at Tweed Mall.  I couldn’t accept the work at Labrador as I had no means of travelling there”.

  1. [13]
    The plaintiff could not remember saying the first sentence (t.30) but remembered saying something to the effect of the second sentence (t.31).
  1. [14]
    The plaintiff was cross-examined as to the working arrangements. He agreed he was on call and would only work if work was available (t.17). It was work on a day to day basis. He was of the view that Mr. Farley did have a lot of jobs coming up (t.18). He was going to get a fair bit of work (t.20). After finishing on 4 June he knew he was getting more work (t.21). He was free to take other work from other employers (t.21). In re-examination he was questioned specifically as to the arrangements (t.34)

“When you say that you were contacted by Mr. Farley in relation to being in his employ?--  Yes, sir. 

What was spoken of at that stage as being envisaged that you had been employed by Mr. Farley?  Was it just the Tweed Mall project or other projects as well?--  Other projects as well.  He just said he’s got a fair bit of work coming up and he put me on on a casual basis.  They always do anyway.  They put you on a casual basis until they have got a lot of work and then if you prove yourself then you go permanent.  That’s sort of been the case in every job I’ve had with them.”

  1. [15]
    Mr. Farley gave evidence that after a discussion with Darcy Cavanagh on 15 May 1995, he called the plaintiff (t.36-37). In the first phone call Mr. Farley offered the plaintiff employment at the job site at Labrador (t.37). After that conversation, it was discovered that the steel would not be delivered to the Labrador site, and, in another phone call to the plaintiff, Mr. Farley offered him work on the Tweed Mall for the day (t.37). Transport arrangements were made that the plaintiff would meet Mr. Farley at his residence for transport to the site. On the morning of 16 May the plaintiff attended at Mr. Farley’s residence and was given a lift to the Tweed Mall. Mr. Farley gave him lifts to and from the Tweed Mall on 16 and 17 May. On 18 May the plaintiff found his own way to the site, where he only worked for an hour (t.38). After that day work got quiet, and Mr. Farley told the plaintiff to have a few days off but that he had a lot more work coming up at Labrador and the Tweed (t.38). Mr. Farley described the nature of the work as on and off, depending on the stages of the construction (t.38). The plaintiff again worked from 1 June to 6 June 1995 when he sustained injury.
  1. [16]
    As at 6 June 1995, the defendant had compensation insurance with the Workers' Compensation Board (Queensland). It did not have New South Wales cover at the time.
  1. [17]
    Mr. Farley was cross-examined as to the phone number he used to contact the plaintiff (t.41):

“Do you remember the number you were given?--  Off the top of my head, 248169, I think.

It started with a 2, did it?--  Yeah.  I’m sure of that.  I’m not – actually I can’t be positive.  That’s off the top of my head. 

Might it have been 248687?--  To that effect.”

  1. [18]
    The plaintiff’s evidence was that his sister’s number was 07-55331350 (t.8). The plaintiff thought that the number 248687 was his girlfriend’s phone number (t.16).
  1. [19]
    Mr. Farley’s evidence was that throughout the telephone conversation the plaintiff had indicated he was living at Lower Beechmont. He was adamant that he gave the plaintiff a lift the following day, and that he met him at his house at Nerang (t.42). He did not collect him at McDonalds (t.42). He could remember the plaintiff patting his dog over his fence. He was also adamant that the initial arrangement was for the plaintiff to work on the Labrador site (t.44).
  1. [20]
    As to the working arrangements, Mr. Farley agreed that the plaintiff would be working on a casual basis (t.47). He was paid day by day as work was available. Mr. Farley had plenty of work. He knew he would have to employ him again (t.48). He indicated to the plaintiff that he had an amount of work upcoming (t.58-59).

The Contract of Employment

  1. [21]
    Counsel for the third party submitted that the employment was on a day by day basis and that each day was a new contract. There was no expectation of work from one day to the next. The work was available on some days being communicated by the defendant on the evening before if the plaintiff was available. It was employment under a series of separate and distinct contracts of employment. It was not a single ongoing contract of indefinite duration.
  1. [22]
    If this is the case, it is only the contract of employment on 6 June 1995 which is relevant. On that date it was clear that the plaintiff was then resident in New South Wales and commenced work at the Tweed Heads site. There would thus be no nexus to bring his employment within the Queensland Workers' Compensation Act 1990. 
  1. [23]
    It is my view, however, that the circumstances of this case demonstrate an ongoing arrangement between the plaintiff and Mr. Farley. It was clearly within the contemplation of each that further work would be available as it arose. Even though the work only arose depending on the stages of construction at each site, I accept Mr. Farley’s account that he proposed to employ the plaintiff at a number of sites as the work was available. In my view, it was a single ongoing contract (see H E S T Australia Ltd v. McInerney (1998) 71 SASR 526).  The periods of no work were consensual with the expectation of resumption.  The position is analogous to the question of whether employment was casual or permanent, being referrable to the intent of the parties:  see Rowan v. Workers' Compensation Board of Queensland (Queensland Industrial Gazette, 3 September 1988 at p.20 per Moynihan P.)  In my view, both Mr. Farley and the plaintiff had the intent that the arrangement would be an ongoing one with the plaintiff on call to meet the exigencies of the construction industry and his employer’s business. 
  1. [24]
    It is thus my finding that the date for the commencement of the contract of employment was 15 May 1995 when Mr. Farley agreed to the employment of the plaintiff.

Section 4 – Workers' Compensation Act 1990 (Qld)

  1. [25]
    Section 4 of the Workers' Compensation Act 1990 (Qld), so far as it is relevant, provides:

“This Act applies so as to confer an entitlement in respect of injury suffered by a worker –

  1. (a)
    on the worker;

…

if –

…

  1. (d)
    the worker is not in Queensland at the time the injury is suffered, if –
  1. (i)
    the worker entered into the contract of service or apprenticeship (in respect of the employment out of or in the course of, which the injury arose) in Queensland with an employer who, at the time the contract was entered into, had a place of employment, or was present, in Queensland; and
  1. (ii)
    the worker commenced employment under the contract in Queensland; and
  1. (iii)
    employment under the contract is, or was, with the knowledge and consent of the employer, carried out partly in Queensland and partly outside Queensland;

unless in the Board’s opinion, the worker has been continuously out of Queensland for longer than two years;

and in no other case.”

  1. [26]
    Section 4 appears in the division of the Act entitled “Part 1 – Preliminary”. It is expressed in general terms and so appears to apply to all sections of the Act. It gives the Act an extra territorial operation and although there may be an argument that it refers only to compensation entitlements, in my view it is applicable because of its general terms to all provisions of the Act, including the provisions relating to insurance in respect of an employer’s legal liability existing independently of the Act to pay damages in respect of injury to a worker. The extra territorial operation of this aspect may be further limited by the definition of “accident insurance” contained in s.5 of the Act.
  1. [27]
    I turn now to the factual disputes which bear upon the extra territorial operation of s.4.
  1. [28]
    The third party submits that I should find that the plaintiff was in New South Wales when the phone calls of 15 May 1995 were made to him, and that he commenced employment in New South Wales (that is, that he was not transported from Nerang) and that he was only contracted to work in New South Wales. This is submitted firstly, on the basis of later statements made by the plaintiff in Exhibit 2 (application for workers' compensation) from which it is submitted it can be inferred that the plaintiff was in New South Wales at the date the employment commenced. In my view, it is difficult to go beyond the plaintiff’s evidence that this was a simple mistake on the plaintiff’s part. He thought the question related to the date of the accident. In this regard, I take into account the plaintiff’s level of education and lack of experience in clerical matters (t.34). It is argued secondly, that apparent statements to an investigator, Mr. Dank, contained in Exhibit 28, although not adopted by the plaintiff, are previous inconsistent statements made by the plaintiff which are evidence of the facts contained therein. It should be noted that Mr. Dank had no independent recollection of the conversation apart from the written notes (t.99). As the notes were kept by Mr. Dank, apparently as a result of a question and answer exercise and were not adopted by the plaintiff, it is difficult to attribute the exact words in the notes to him. More importantly, in my view, the account apparently given to Mr. Dank by the plaintiff does not differ in sufficiently significant detail to find that the plaintiff’s evidence as to his whereabouts when he received the phone calls on 15 May 1995 were untrue. Thirdly, it is argued that the phone number which Mr. Farley was questioned about as having rung (t.41) on 15 May indicated that it was the plaintiff’s girlfriend’s number in New South Wales. An analysis of Mr. Farley’s responses however, indicates that he could not be positive of the number he rang, and that he did not specifically remember the number put to him.
  1. [29]
    It is further argued that there were inconsistencies in the detail between the evidence of the plaintiff and Mr. Farley, particularly concerning the place of pickup in Nerang, the travel arrangements for the morning of 18 May, and apparent illogicalities in the plaintiff’s account of hitchhiking to Nerang to be picked up. I was, however, particularly impressed by the evidence of Mr. Farley in this regard. His response of clearly remembering the plaintiff patting his dog appeared to me to be spontaneous and truthful. The plaintiff’s differences in detail could well be explained by the effluxion of time. It should be noted that on one occasion in cross-examination the plaintiff could not remember the day of the week when he was injured (t.19 and 25). I also see nothing illogical in the plaintiff’s account of hitchhiking.
  1. [30]
    It is further argued that the address given by the plaintiff to the defendant in a tax declaration form and repeated by Mrs. Farley in the document entitled “Employer’s Report”, Exhibit 9, which was in New South Wales (t.74), indicated that the plaintiff was in New South Wales at the relevant time. The address was that of the plaintiff’s mother, and in my view, could be seen as little more than a contact address.
  1. [31]
    To find that the plaintiff was not transported from Nerang would mean the rejection of the evidence of both the plaintiff and Mr. Farley. I accept the evidence of both as being truthful and find that the plaintiff was in Queensland when he received the calls on 15 May 1995 and that he was taken from Nerang to Tweed Heads by Mr. Farley to commence employment on 16 May 1995. I also find that the contract of employment envisaged work both at a number of construction sites in Queensland as well as the one site in Tweed Heads.
  1. [32]
    Section 4(d) of the Queensland Act provides that the Act applies so as to confer an entitlement in respect of injury suffered by a worker if the worker is not in Queensland at the time the injury is suffered if the three conditions contained in the subparagraphs are met.
  1. [33]
    Section 4(d)(i) provides that the worker must have entered into a contract of service (in respect of the employment out of, or in the course of, which the injury arose) in Queensland with an employer who, at the time the contract was entered into, had a place of employment, or was present in Queensland.
  1. [34]
    With respect to s.4(d)(i), it is clear that Mr. Farley was always present in Queensland when the phone calls to the plaintiff were made. His business was registered in Queensland, he had a number of building sites in Queensland, and the contract was entered into over the phone when Mr. Farley accepted the plaintiff as an employee. I am of the view that the requirements of s.4(d)(i) are satisfied.
  1. [35]
    Section 4(d)(ii) requires that the worker commenced employment under the contract in Queensland. The plaintiff obviously did not work on any of the defendant’s building sites in Queensland. He worked on the Tweed Mall site on a number of days until the date of the injury. He was, however, taken by his employer from a place in Queensland to the work place. If he had been injured on that journey, he would have been covered by the journey provisions of the Act. It is my view that he commenced employment on 16 May 1995 when he was taken to work by Mr. Farley.
  1. [36]
    The requirements of s.4(d)(iii) requires that employment under the contract is, or was, with the knowledge and consent of the employer, carried out partly in Queensland and partly outside Queensland. In my view, this subparagraph is aimed at the knowledge and consent of the employer to work being carried on out of Queensland. It is to avoid the situation where work out of Queensland was done without the knowledge and consent of the employer. Mr. Farley was obviously aware that work was to be carried out in New South Wales as it was he that offered the specific job site to the plaintiff and indeed, transported him there. It is also my finding that the contract of employment was for work to be performed both in Queensland and in New South Wales. It was simply fortuitous that the first job site was in New South Wales and infelicitous, that the accident occurred at that first site. To deny the application of s.4 because no actual work was performed in Queensland because of circumstances, would go against the objects of the Act. In any event, as I say, I am of the view that the gravamen of s.4(d)(iii) relates to the employer’s knowledge and consent. I am thus of the view that the requirements of s.4(d)(iii) are satisfied.
  1. [37]
    The qualification to s.4(d), which gives the Board a discretion to deny the Act’s application if the Board is of the opinion that the worker had been continuously employed outside Queensland for longer than two years, has no application in the circumstances of this case.
  1. [38]
    In my view, the determined facts allow the application of s.4(a) and (d) to confer an entitlement in respect of the injuries suffered by the plaintiff. This would entitle the plaintiff to compensation payments under the insurance policy under the Act, but its impact on legal liability existing independently of the Act depends on an interpretation of the definition of “accident insurance” contained in s.5 of the Act.

“Accident Insuance” Under the Workers' Compensation Act 1990

  1. [39]
    Section 44 of the Workers' Compensation Act 1990 (Queensland) (“the Queensland Act”) provides for the employer’s legal liability and obligation to insure:
  1. “44(1).
    An employer is legally liable to pay the compensation prescribed to be payable from the fund in respect of an injury suffered by a worker employed by the employer.
  1. (2)
    Subject to subsection (3), every employer is to insure and remain insured with the Board under a policy in respect of –
  1. (a)
    the employer’s legal liability to pay compensation under this act; and
  1. (b)
    the employer’s legal liability existing independently of this Act to pay damages in respect of injury to a worker employed by the employer, being a liability within the cover of accident insurance as defined in s.5.”

Subsection (3) is of no relevance to the current matter.

  1. [40]
    Section 5(1) of the Queensland Act provides a definition of “accident insurance”:

“Accident Insurance” means insurance by which an employer is indemnified against all sums for which the employer may become legally liable in respect of injury to a worker employed by the employer, in respect of –

  1. (a)
    compensation under this Act;  and
  1. (b)
    damages arising under circumstances creating also, independently of this Act, a legal liability in the employer to pay such damages, other than a liability against which the employer is required to provide under some other Act of Queensland or a law of another State or Territory, or of the Commonwealth or of another country.”
  1. [41]
    It is submitted on behalf of the third party that the Workers' Compensation Act 1987 (New South Wales) (“the New South Wales Act”) is a law of another State within the meaning of the proviso to the definition of insurance policy. 
  1. [42]
    The relevant provision of the New South Wales Act is s.155 as amended:
  1. “155(1)
    An employer (other than a self-insurer) shall obtain from a licensed insurer, and maintain in force a policy of insurance that complies with this division for the full amount of the employer’s liability under this Act in respect of all workers employed by the employer and for an unlimited amount in respect of the employer’s liability independently of this Act (being a liability under a law of New South Wales) for any injury to any such worker.”
  1. [43]
    In the definition section of the New South Wales Act (s.3) the terms “employer” and “worker” are defined. As relevant, they were:

“Employer” includes:

  1. (a)
    any body of persons, corporate or unincorporate;

…

“Worker” means any person who has entered into or works under a contract of service or apprenticeship with an employer, whether by way of manual labour, clerical work or otherwise, and whether the contract is express or implied, or is oral or in writing …

  1. [44]
    This exact point was considered by the Court of Appeal in Burrows v. The Workers' Compensation Board of Queensland (Court of Appeal, Queensland, Appeal No. 6694/96, 12 June 1997). Fitzgerald P (with whom the other members of the court agreed) concluded that s.155 of the New South Wales Act imposed upon the employer an obligation to obtain a policy of insurance in New South Wales.  There was thus a liability against which the employer was required to provide under the law of another State, as specified in the Queensland definition of “accident insurance”. 
  1. [45]
    Fitzgerald P stated:

“The terms “employer” and “worker” are defined in subsection (3)(1) of the New South Wales Act in general terms and are literally wide enough to extend to the respondent and his employer at the time when he was injured.  However, some limitation must be imported into subsection 155(1) of that Act.  Each of the respondent and his employer at the time when he was injured was a Queenslander, and subsection 155(1) plainly was not intended to apply if the respondent had been injured while working in Queensland or, for that matter, Victoria.  That is not the case. 

Although the respondent’s employer at the time when he was injured was a company incorporated in Queensland and not registered elsewhere which had its only premises in Queensland, its business as a transport operator regularly involved it in business activities in New South Wales. 

The respondent, the driver of one of his then employer’s vehicles, went to New South Wales on numerous occasions in the course of his employment, and his injury occurred in New South Wales while he was working there in the course of his employment.

The long title describes the New South Wales Act as an act “to provide for the compensation and rehabilitation of workers in respect of work related injuries”, and as a matter of policy it is plainly intended to have a wide and beneficial operation. 

I cannot identify any reason for reading subsection 155(1) down so as to exclude from its ambit any work related injury which occurs in New South Wales.  However, there might be other provisions in the New South Wales Act to which the attention of this court has not been drawn which affects some limitations in some circumstances, and it is possible that, for example, subsection 155(1) of the New South Wales Act is inapplicable if an employee’s presence in New South Wales when he or she is injured in the course of his or her employment is fortuitous, fleeting or sufficiently unusual.  It is sufficient for present purposes to say that, in my opinion, subsection 155(1) of the New South Wales Act is not inapplicable merely because neither employer nor employee is resident or domiciled, based or located, whichever be thought most apposite, in New South Wales when an employee is injured, and that the subsection was applicable to the respondent’s then employer in respect of the work related injury which the respondent suffered in New South Wales in the course of his employment, which was the subject of the present action. That conclusion seems to me consistent with the material part of the decision of Kirby A.C.J., with whom Priestley and Clark JJ agreed in WorkCover Authority of New South Wales v. Bill Pat Holdings Pty Ltd (NSWCA 40263/94, unreported, 14 July 1995) and see also what was said by Kirby P in Commissioner for Railways for the State of Queensland v. Peters (1991) 24NSWLR 407 at pp 437-438.”

  1. [46]
    Whilst the circumstances in Burrows are markedly different from the present case in that the plaintiff in that case was regularly required to work in New South Wales as opposed to the present case where there was one job site in New South Wales of limited duration and it was intended that the plaintiff work on that site as well as other sites in Queensland, the same principles obviously apply.  I have reviewed the provisions of the Workers' Compensation Act 1987 (New South Wales) as it stood at the relevant date.  There is nothing in that Act which affects some limitation on the operation of s.155 to make it inapplicable if the “employee’s presence in New South Wales when he or she is injured in the course of his or her employment is fortuitous, fleeting or sufficiently unusual”. 
  1. [47]
    Thus, I am of the view that the proviso in the definition “accident insurance” in s.5 of the Queensland Act applies and that the employer was required to provide against liability under New South Wales law.
  1. [48]
    The proviso to the definition of “accident insurance” may seem to be at odds with the extra territorial aspect of s.4 of the Queensland Act. Section 4 was apparently introduced to overcome the final result in the decision of the High Court in Mynott & Ors v. Barnard (1939) 62 CLR 68.  The proviso contained in the definition of “accident insurance” would seem to defeat that intent. 
  1. [49]
    Thus, because of the definition of “accident insurance” in s.5, it is my view that the employer is not indemnified pursuant to the Queensland Act.
  1. [50]
    It remains to consider the arguments raised in relation to estoppel.

Estoppel

  1. [51]
    The defendant submits firstly that representations allegedly made by the third party to the defendant amount to an estoppel preventing the third party denying its liability to subrogate the defendant in the plaintiff’s action, and secondly, that the payment of compensation by the third party to the plaintiff similarly amounts to an estoppel. Consideration of those issues entails the resolution of a number of factual issues.

Factual Issues Relating to the Payment of Compensation

  1. [52]
    After the injuries suffered on 6 June 1995, the plaintiff applied for and was paid compensation by the Workers' Compensation Board of Queensland (t.10-11). After some 5-6 weeks, the payment was suspended during investigation and subsequently resumed until the plaintiff appeared before a Medical Assessment Tribunal in October 1996 when he was placed on a disability pension (t.11, 8). Benefits were paid from 7 June 1995 to 2 October 1996 (Exhibit 1).
  1. [53]
    Mr. Farley gave evidence that he had an insurance policy covering his workers with the Queensland Workers' Compensation Board (t.39). His co-director, Mrs. Farley, gave evidence of applying at the start of 1995 for an insurance policy (Exhibit 4), of being given a policy number (t.66) and of the subsequent payment of premiums (Exhibit 5). The plaintiff was included in the employer’s declaration. In October 1995, an investigator for the third party (Mr. Dank) audited the defendant’s books to determine whether the plaintiff had been declared under the policy (t.58-59, 69). Mr. Dank gave evidence of the investigation and found that the plaintiff had been included in the defendant’s declaration (t.100). The defendant submits that the payments by the third party of compensation to the plaintiff amounts to an estoppel, preventing the third party denying its liability to subrogate the defendant in the plaintiff’s action.

Factual Issues With Respect To Alleged Representations Made By The Third Party

  1. [54]
    The co-director of the defendant company, Mrs. Farley, gave evidence that on three separate occasions prior to the accident she placed telephone calls to the Workers' Compensation Board of Queensland to inquire as to whether coverage under the Queensland policy extended to workers engaged on a job site in New South Wales.
  1. [55]
    She gave evidence that in early April 1995 she phoned the Workers' Compensation Board in Brisbane and spoke to the woman who answered the phone (t.60). She was asked for her policy number and then she asked whether her employees were covered while working over the border in New South Wales. She was asked whether the business was based in Queensland, which she affirmed. She said she was told:

“Well, your men are covered while working over the border.” (t.60)

  1. [56]
    She gave evidence of ringing on a second occasion, probably in late April 1995 (t.61). She could not recall whether she was put through to anyone or spoke to the woman who answered the phone. She stated that the firm was starting the job in Tweed Heads and wanted to check that the men were covered in New South Wales. She told the woman that the firm “mainly do most of our work in Queensland but this was a job we had in Tweed Heads”. She was asked whether they were going to be there for more than six months permanently. Mrs. Farley told the woman:

“No, because we had other job sites and men will be going back and forth so no one will be there permanently for more than six months at a time”. 

She was told:

“ Well, on that basis your policy will cover that.” (t.61). 

  1. [57]
    With respect to the third telephone call she said:

“In May 1995, my husband came home one day and he was speaking to someone on site from some authority and they just asked him a question about WorkCover New South Wales and he said, you know, you check, and I said, okay, I’ll check again because I was concerned.  And he said – by that time WorkCover had regional offices and I rang Gold Coast office at this time.”

  1. [58]
    She was transferred to someone with a supervisor capacity. Her evidence as to the conversation which then occurred was:

“I told her that I had phoned before and that I was concerned and I said that we are actually on the job at Tweed Heads and I had men living in New South Wales and Queensland and I needed to know that they were covered while working over the border in Tweed Heads.  Gave her policy number like the other times.  I quoted it to her.  She said, ‘Is this a one off job?’ and I said ‘Yes, it is at this stage’ and I told her that our men go back and forwards.  I said – she actually then said to me about – I said I had men living in New South Wales that work in Queensland and they were covered by the policy, so, you know, the policy – the Queensland men working over the border and she said yes.  She said as long as they don’t work for a period of more than 6 months permanently and she just said based – that you were a Queensland based company and they are not working for longer than that six months period then I, you know, don’t need a New South Wales policy”. (t.62).

  1. [59]
    At that stage the prefix of the policy number had changed due to the transfer to regional offices (t.61). She thought she gave the new policy number (t.84) but could not specifically recall (t.88).
  1. [60]
    Mrs. Farley also gave evidence that at some stage in 1995 and prior to the employment of Mr. Salisbury, she received a brochure from the Workers' Compensation Board of Queensland (Exhibit 3, t.63). A passage in the brochure was already highlighted. The relevant highlighted passage appears in a section entitled “Other Entitlements Under the Act” and reads:

“1. Workers temporarily employed outside the State are covered under their employer’s policy and may claim compensation if the injuries sustained arises out of or in the course of that employment”.

  1. [61]
    It was put to Mrs. Farley in cross-examination that she had not had the three telephone conversations. She was adamant that she had (t.90). It was suggested to her that she was confusing the third conversation with a conversation had in July 1995 with a Workers' Compensation Board employee, Denise Olton (t.86-89). Mrs. Farley could not remember details of that conversation but was again adamant that the third conversation occurred prior to the accident (t.86).
  1. [62]
    Various affidavits from persons who had worked for the Workers' Compensation Board in 1995 were tendered (Exhibits 11-26, 29). They attested to not recalling any such phone calls from Mrs. Farley in 1995 and stated they would have advised such a caller to make inquiries with the applicable workers' compensation body in New South Wales. It should be noted that not all female employees of the Workers' Compensation Board in the relevant part of 1995 could be found.
  1. [63]
    Denise Thomas (nee Olton) gave evidence that in 1995 she worked at the Southport office of the Workers' Compensation Board. In June 1995 a part of the insurance division was transferred to the Southport office and she was appointed as the supervisor (t.105). Prior to June 1995, the policy was that an inquiry relating to interstate workers would have been transferred to Brisbane (t.107). She gave evidence that the change to the prefix number of policies occurred in October 1995 (t.109). She recalled a specific telephone conversation with Karen Farley on 12 July 1995 of which she kept notes. Such conversation was about interstate workers and whether or not WorkCover was going to cover an employee (t.108). Of course, by that stage the accident to the plaintiff had already occurred.
  1. [64]
    In re-examination she stated that if a caller had made an inquiry similar to the one Mrs. Farley said she made to the Southport office in May 1995, it would have been referred on to Brisbane (t.112).
  1. [65]
    Mrs. Saya Saunders gave evidence that in May 1995 she worked for WorkCover Queensland, Southport office (Exhibit 29 and t.114). She had no recollection of receiving a phone call from Mrs. Farley. She attested that if asked such a question she may have advised that so long as the employees of the company were temporarily absent only from Queensland, they would be covered under the Queensland policy, but would have advised the person to check with the New South Wales workers' compensation body. In response to a question as to whether she would have nominated a particular time period in terms of illustrating what temporarily meant, she replied:

“Well, if I had it would have been that the legislation referred to a maximum of six months.” (t.116)

  1. [66]
    It is submitted on behalf of the third party that I should not find that the alleged telephone conversations took place in the light of the affidavits and the evidence of Mrs. Thomas. It is further submitted that Mrs. Farley may well be confusing the content of the 12 July conversation with her recollected May conversation with the Southport office.
  1. [67]
    As noted above, Mrs. Farley was adamant that each of the three telephone conversations occurred prior to the accident. I found her to be a straightforward, credible witness. There is nothing in the case which causes me to doubt her credit. It is perfectly understandable that a company commencing a job in New South Wales would make such inquiries. The possible confusion as to policy numbers and the existence of a similar conversation on 12 July 1995 does not cause me to doubt her reliability. This is particularly the case considering the evidence of Mrs. Saunders who introduced the time period of six months in a context remarkably similar to what Mrs. Farley says she was told. The existence of a practice for Workers' Compensation Board employees in responding to such inquiries does not cause me to disbelieve Mrs. Farley, as adherence to the practice can not be certain.
  1. [68]
    I thus find that Mrs. Farley made the three telephone calls prior to the accident. The content of what she was told is as she gave in evidence. I also find that she was sent the brochure headed “General Information For Injured Workers” of the Workers' Compensation Board of Queensland prior to the accident.

The Payment of Compensation

  1. [69]
    Counsel for the third party, Mr. Holyoak, submits that the payment of compensation to the plaintiff cannot amount to an estoppel. He argues that the two schemes under the Act are separate and distinct. He likens the argument to the suggestion that payments of a previous or associated claim estop an insurer denying a later claim. Such a proposition is against long standing authority: McInerney v. Schultz (1981) 28 SASR 542;  see also Sutton, “Insurance Law in Australia”, 3rd ed., Law Book Company 1999, para. 11.24.
  1. [70]
    It is my view that the Workers' Compensation Act 1990 (Queensland) sets up two separate schemes, one to provide workers' compensation payments and rehabilitation and the second to provide for a scheme of insurance to cover damages in respect of injury to a worker arising under circumstances creating, independently of the Act, a legal liability in the employer to pay such damages.  The payment of workers' compensation payments (which, as I have found was required by the satisfaction of the extra territorial provisions of s.4 of the Queensland Act), cannot, in my view, create an expectation that the insurer would also meet the liability in relation to damages under the same policy of insurance.  This is particularly the case where the term “accident insurance” is limited by the definition contained in s.5 of the Queensland Act as discussed above. 
  1. [71]
    I am of the view that the making of compensation payments under the policy cannot amount to an estoppel.

Can The Representations Amount to Estoppel?

  1. [72]
    Mr. Holyoak submits that there can be no estoppel if the representation is one merely of law or legal rights under a policy of insurance. I am of the view, however, that the representations were ones of fact in that they represented that the Queensland policy would cover employees working temporarily in New South Wales.

Estoppel In The Face Of A Statute

  1. [73]
    Mr. Holyoak submits that the estoppel sought to be raised here cannot operate to extend the power of a statutory authority beyond that given by statute.
  1. [74]
    It is clear that estoppel cannot be invoked to negative the operation of a statute. See Beesley v. Hollywood Estates Ltd (1960) 2 All ER 314 at 324;  (1960) 1 WLR 549 at 561 – per Buckley J – affirmed on appeal (1961) 1 All ER 90;  (1961) Ch 105 as noted by Shepherdson J in Mears v. Coles Myer Ltd, Supreme Court Queensland, 99/99, 18 August 1999, unreported.  The matter of estoppel was not raised in argument in that case. 
  1. [75]
    In Salamon Nominees Pty Ltd v. Moneywood Pty Ltd, Court of Appeal, Queensland, 4852/98, 22 December 1998, unreported, it was held that the estoppel sought to be raised would operate to nullify a statutory requirement that an appointment of an agent had to be evidenced in writing.  The statute in that case absolutely prohibited the recovery of commission by an agent whose appointment was not evidenced in writing.  The respondent was not able to circumvent that statutory policy by estoppel.
  1. [76]
    The Court of Appeal referred to Day Ford Pty Ltd v. Sciacca [1990] 2 Qd.R. 209, which concerned a contract for the sale of land made invalid by the Land Sales Act 1984.  It was there argued that the defendant was estopped from relying upon the Act by reason of representations that there was a valid contract and that the representees had acted to their detriment on the faith of the representations.  Macrossan CJ (with whom Kelly SPJ and Ambrose J agreed) said at p.216:

“A number of cases consider the place of estoppel in supporting the enforcement of a contract which would otherwise be void for illegality.  In Kok Hoong v. Leong Cheong Kweng Mines Ltd [1964] AC 993, reference is made to the familiar rule which, in its ordinary form, is stated in this fashion: A party cannot set up an estoppel in the face of a statute. At 1016 the Privy Counsel suggested that a test to apply in the type of case before it, namely one involving the laws of money lending was to ask ‘whether the law that confronts the estoppel can be seen to represent a social policy to which the court must give effect in the interests of the public generally or some section of the public’.  A similar approach had been adopted in Maritime Electric Co v. General Dairies Ltd [1937] AC 610, especially at 620 where it was said that in deciding whether an estoppel might be set up against the operation of a statute ‘the court should first of all determine the nature of the obligation imposed by the statute, and then consider whether the admission of an estoppel would nullify the statutory provision’.  At 621, the court declared that it was ‘unable to see how the court can admit an estoppel which would have the effect pro tanto and in the particular case of repealing the statute’.  There is no need to multiply examples by the citation of authorities since the appropriateness of this approach based on consideration of social and statutory policy is so amply supported.  In the present case we see that the statute by s.8 imposed an unconditional prohibition upon the very type of sale which the written contract of May 1988 provided for.  The plaintiff’s claim so far as they rely upon estoppel should be rejected.”

  1. [77]
    It is also clear that estoppel cannot lie to extend the power of an administrative body beyond the regulation or law which creates the power: Nicholas v. Western Australia [1972] WAR 168;  Minister for Immigration and Ethnic Affairs v. Kurtovic (1990) 92 ALR 93;  Commonwealth of Australia v. Hamilton [1992] 2 Qd.R. 257;  Adams v. Executive Director of Fisheries for Western Australia, McKecknie J, Supreme Court , WA, 21 February 2000, unreported. 
  1. [78]
    In relation to statutory schemes of insurance, although estoppel may not be raised in the face of a statute, there remains within the limits of most statutes, areas of fact to which the doctrine may apply.
  1. [79]
    In Wilson v. Austral Motors (Queensland) Pty Ltd [1983] 2 Qd.R. 774, it was sought to be argued that an election by an insurer to defend an action operated as an estoppel.  McPherson J said at p.782:

“That raises the question of the extent to which, if at all, the Board may be estopped by conduct from alleging that it is not liable.  In Northern Assurance Company Limited v. Cooper [1968] Qd.R. 46, Lucas J held that a licensed insurer under the Motor Vehicle Insurance Act was, against the owner of the motor vehicle, estopped from asserting that it was not, under a policy issued under the Act, liable to that owner after the insurer had unsuccessfully taken interrogatory proceedings in the name of the owner resulting in an order for costs against the latter.  In that instance, however, the insurer had evidently not exercised its statutory election to defend, but had in reliance on a clause in the policy taken the proceedings in the name of the insured and then sought to repudiate the policy on the basis of non-compliance with the condition therein.  The decision is not authority for the proposition that the Board may be estopped from asserting its immunity in circumstances in which the Act imposes no liability upon it.  The decision in Richards v. Harrison (supra) seems to me to be authority in favour of, rather than against, the view I have taken.  Notwithstanding what was said by Stanley J in the passage set out above, His Honour proceeded in that case to construe the regulations and to hold that the defendant by election was liable in terms of the statutory policy.  The same approach is implicit in the decision of Fullagar J in Hansen v. Marco Engineering (Australia) Pty Ltd [1948] VLR 198 in relation to the statutory, rather than the comprehensive, policy in that case. 

The decisions referred to may nevertheless be said to establish that it is possible for the Board by its conduct to estop itself from asserting that, in terms of the Act, it is not liable to the defendant, or perhaps to a plaintiff who may have been led by the representations of the Board to act on the assumption that the Board has accepted liability to indemnify, and so may have refrained, until it is too late, from serving or otherwise pursuing the licensed insurer under the Motor Vehicle Insurance Act.  Although an estoppel may not be raised in the face of a statute, there remains within the limits of those statutory provisions an area of fact, as to which the doctrine of estoppel may apply;  for example, the Board may be estopped from asserting facts which show that the person injured was not a ‘worker’ within s.9A read with the terms of the definition in s.3 of the Workers' Compensation Act; or that the injury fell within the exception in s.9A(1) because it was caused ‘by, through or in connection with’ an insured motor vehicle within s.3(1) of the Motor Vehicle Insurance Act.”

  1. [80]
    See also comments by Carter J in Boath v. The Central Queensland Meat Export Company Pty Ltd and State Government Insurance Office (Queensland) [1986] 1 Qd.R. 139 at 152, 153. 
  1. [81]
    In Morris v. F A I General Insurance Company Limited [1996] 1 Qd.R. 495 where a letter sent by the insurer was held to be capable of allowing an assumption adopted by the respondent that the insurer was admitting liability and would not rely on the limitation period, the insurer was estopped as against the respondent from relying on the expiration of the limitation period.  See also The Commonwealth v. Verwayen (1990) 170 CLR 394.
  1. [82]
    In my view, consistent with the remarks in Wilson v. Austral Motors (supra), in the circumstances of this case there is an area of fact to which the doctrine of estoppel applies.  This relates to representations about the circumstances in which the policy of insurance actually covers the insured.  In this regard, see Territory Insurance Office v. Adlington (1992) 84 NTR 7.
  1. [83]
    Considering the questions referred to in Day Ford Pty Ltd v. Sciacca (above), the social policy of the Workers' Compensation Act 1990 is discerned from the long title of the Act, “An Act to provide for compensation and rehabilitation of injured workers and for related purposes” and in s.3 of the Act, “Objects of Act”. It reads (in part),

“The objects of this Act are –

  1. (a)
    To provide for the maintenance of a system of accident insurance providing adequate and suitable cover for workers who suffer injury, and for dependants of workers whose deaths result from injury;”

In my view, the operation of estoppel in the circumstances here could not be seen to defeat one of the principal social purposes of the Act.

  1. [84]
    In the particular circumstances of this case, where, as all parties agreed, the practice of the insurer is not to issue an actual insurance policy document (as per the submissions of counsel for the third party) and the terms of the insurance are to be discerned from the Act itself, the insured is entitled to rely on representations made by the insurer or its employees as to the extent of coverage. In those circumstances it would be unconscionable to allow the third party to resile from those representations.
  1. [85]
    With respect to this aspect, I disregard the contents of the brochure (Exhibit 3). It has not been proved that the brochure was sent by the Workers' Compensation Board of Queensland, or indeed, that it was an official publication of the Board. It is interesting however to note that the content of the highlighted section is generally consistent with the information that Mrs. Farley says was given to her.
  1. [86]
    I am of the view that the representations made to Mrs. Farley by officers of the Workers' Compensation Board in three telephone conversations as determined above, amount, in effect, to an assurance that the Queensland policy of insurance covered workers temporarily working in New South Wales.
  1. [87]
    In that regard, I note that the limitation on the definition of “accident insurance” in s.5 of the Queensland Act is not further strengthened by the words “and in no other case” which appear at the conclusion of s.4. In my view, this allows a construction of the definition which permits representations that might extend it within the ambit of factual issues. As noted above, I am of the view that the extra territorial requirements of s.4(a) and (d) are satisfied in the circumstances of this case in any event.
  1. [88]
    It remains to consider whether it was unreasonable for the defendant to have relied upon the representations, whether they were relied upon, and whether real or material detriment was suffered.
  1. [89]
    Mr. Holyoak submits that it was unreasonable, objectively, for the defendant to have relied on the representations as (if they were made) they were not directed to the plaintiff’s circumstances. He further submits that there was no evidence that the representations were relied upon. He submits that this does not only reveal an absence of evidence of causation, but affects what the “minimum equity” is to discharge any representation which the defendant is held bound to. As to detriment, he submits that it is difficult to discern exactly what prejudice is alleged by the defendant. He submits there is no evidence that any alternative policy in New South Wales would have been taken out.
  1. [90]
    In The Commonwealth v. Verwayen (above) Deane J at p.444-446 set out what he saw as the conceptual foundations of the general doctrine of estoppel by conduct.  He said:

“1. While the ordinary operation of estoppel by conduct is between parties to litigation, it is a doctrine of substantive law the factual ingredients of which fall to be pleaded and resolved like other factual issues in a case.  The persons who may be bound by or who make take the benefit of such an estoppel extend beyond the immediate parties to it, to their privies, whether by blood, by estate or by contract.  That being so, an estoppel by conduct can be the origin of primary rights of property and of contract.

  1. The central principle of the doctrine is that the law will not permit an unconscionable – or, more accurately unconscientious – departure by one party from the subject matter of an assumption which has been adopted by the other party as the basis of some relationship, course of conduct, act or omission which would operate to that party’s detriment if the assumption be not adhered to for the purposes of the litigation. 
  1. Since an estoppel will not arise unless the party claiming the benefit of it has adopted the assumption as the basis of action or inaction and thereby placed himself in a position of significant disadvantage if departure from the assumption be permitted, the resolution of an issue of estoppel by conduct will involve an examination of the relevant belief, actions and position of that party. 
  1. The question whether such a departure would be unconscionable relates to the conduct of the allegedly estopped party in all the circumstances.  That party must have played such a part in the adoption of, or persistence in, the assumption that he would be guilty of unjust and oppressive conduct if he were now to depart from it.  The cases indicate four main, but not exhaustive, categories in which an affirmative answer to that question may be justified, namely, where that party:
  1. (a)
    induced the assumption by express or implied representation;
  1. (b)
    entered into contractual or other material relations with the other party on the conventional basis of the assumption;
  1. (c)
    has exercised against the other party rights which would exist only if the assumption were correct;
  1. (d)
    knew that the other party laboured under the assumption and refrained from correcting him when it was his duty in conscience to do so. 

Ultimately,  however, the question whether departure from the assumption would be unconscionable must be resolved not by reference to some preconceived formula framed to serve as a universal yard stick but by reference to all the circumstances of the case, including the reasonableness of the conduct of the other party in acting upon the assumption and the nature and extent of the detriment which he would sustain by acting upon the assumption if departure from the assumed state of affairs were permitted.  In cases falling within category (a), a critical consideration will commonly be that the allegedly estopped party knew or intended or clearly ought to have known that the other party would be induced by his conduct to adopt, and act on the basis of, the assumption.  Particularly in cases falling within category (b), actual belief in the correctness of the fact or state of affairs assumed may not be necessary.  Obviously, the facts of a particular case may be such that it falls within more than one of the above categories.

  1. The assumption may be of fact or law, present or future.  That is to say it may be about the present or future existence of a fact or state of affairs (including the state of the law or the existence of a legal right, interest or relationship, or the content of future conduct). 
  1. The doctrine should be seen as a unified one which operates consistently in both law and equity.  In that regard, “equitable estoppel” should not be seen as a separate or distinct doctrine which operates only in equity or as restricted to certain defined categories (e.g. acquiescence, encouragement, promissory estoppel or proprietary estoppel). 
  1. Estoppel by conduct does not of itself constitute an independent cause of action. The assumed fact or state of affairs (which one party is estopped from denying) may be relied upon defensively or it may be used aggressively as the factual foundation of an action arising under ordinary principles with the entitlement to ultimate relief being determined on the basis of the existence of that fact or state of affairs.  In some cases, the estoppel may operate to fashion an assumed state of affairs which will found relief (under ordinary principles) which gives effect to the assumption itself (e.g. where the defendant in an action for a declaration of trust is estopped from denying the existence of the trust). 
  1. The recognition of estoppel by conduct as a doctrine operating consistently in law and equity and the prevalence of equity in a Judicature Act system combine to give the whole doctrine a degree of flexibility which it might lack if it were an exclusively common law doctrine.  In particular, the prima facie entitlement to relief based upon the assumed state of affairs will be qualified in a case where such relief would exceed what could be justified by the requirements of good conscience and would be unjust to the estopped party.  In such a case, relief framed on the basis of the assumed state of affairs represents the outer limits within which the relief appropriate to do justice between the parties should be framed.”
  1. [91]
    Mr. Holyoak’s first submission is based on his contention that the plaintiff was a casual employee employed on a different contract of employment on each day and thus, on the day of the accident, employed from New South Wales on a job site in New South Wales. As I have found above, this was not the case. I am of the view that the inquiries made by Mrs. Farley were directed to the circumstances which applied to the plaintiff as well as, presumably, other employees. It was, in my view, reasonable for the defendant to have relied on the representations made by the Board’s employees, particularly in circumstances where no policy document was issued.
  1. [92]
    As to there being no evidence that the representations were relied upon, there is a clear inference, in my view, that because of the representations the defendant did not pursue alternative insurance in New South Wales. No such policy was taken out until after the accident. The only purpose behind making the inquiries by Mrs. Farley would have been to determine whether the insurance policy in Queensland provided sufficient coverage. If Mrs. Farley had been told that it did not, it is clear that the defendant would have sought appropriate cover in New South Wales. That is the only logical inference from the fact of the inquiries being made at the particular times. This is particularly the case where the estimated cost of the New South Wales policy was only $60 (t.39). The defendant refrained from seeking New South Wales cover because of the representations.
  1. [93]
    With respect to the prejudice suffered by the defendant if departure from the assumption of cover is permitted, it is clear that the defendant would be left without insurance coverage in respect of any award of damages made with respect to the plaintiff’s injuries. This would place the defendant in a position of significant or material disadvantage.
  1. [94]
    It is thus my view that the relief necessary here should be framed on the basis of the assumed state of affairs in order to do justice between the defendant and the third party.
  1. [95]
    I find that the representations made by the third party amounted to an estoppel in the circumstances. The third party is estopped as against the defendant from denying its liability to indemnify the defendant in the plaintiff’s action. The counterclaim by the third party is dismissed.
  1. [96]
    I will hear the parties as to costs.
Close

Editorial Notes

  • Published Case Name:

    Salisbury v Farley Constructions Pty Ltd & Workers' Compensation Board of Queensland

  • Shortened Case Name:

    Salisbury v Farley Constructions Pty Ltd & Workers' Compensation Board of Queensland

  • MNC:

    [2000] QDC 51

  • Court:

    QDC

  • Judge(s):

    Shanahan DCJ

  • Date:

    08 Jun 2000

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Beesly v Hallwood Estates Ltd (1960) 2 All ER 314
1 citation
Jump To
Cite 1 - (1960) 2 All ER 314
Beesly v Hallwood Estates Ltd (1961) 1 All ER 90
1 citation
Jump To
Cite 1 - (1961) 1 All ER 90
Beesly v Hallwood Estates Ltd (1961) Ch 105
1 citation
Jump To
Cite 1 - (1961) Ch 105
Beesly v Hallwood Estates Ltd. (1960) 1 WLR 549
1 citation
Jump To
Cite 1 - (1960) 1 WLR 549
Boath v Central Queensland Meat Export Co Pty Ltd [1986] 1 Qd R 139
1 citation
Jump To
Cite 1 - [1986] 1 Qd R 139
Commissioner for Railways for the State of Queensland v Peters (1991) 24 NSWLR 407
1 citation
Jump To
Cite 1 - (1991) 24 NSWLR 407
Commonwealth of Australia v Hamilton [1992] 2 Qd R 257
1 citation
Jump To
Cite 1 - [1992] 2 Qd R 257
Commonwealth v Verwayen (1990) 170 CLR 394
3 citations
Jump To
Cite 1 - (1990) 170 CLR 394
Cite 2 - (1990) 170 CLR 394
Cite 3 - (1990) 170 CLR 394
Day Ford Pty Ltd v Sciacca[1990] 2 Qd R 209; [1990] QSCFC 1
2 citations
Jump To
Cite 1 - [1990] 2 Qd R 209
Cite 2 - [1990] 2 Qd R 209
H E S T Australia Ltd v McInerney (1998) 71 SASR 526
1 citation
Jump To
Cite 1 - (1998) 71 SASR 526
Hansen v Marco Engineering Co (Aust) Pty Ltd (1948) VLR 198
1 citation
Jump To
Cite 1 - (1948) VLR 198
Kok Hoong v Leong Cheong Kweng Mines Ltd (1964) AC 993
1 citation
Jump To
Cite 1 - (1964) AC 993
Maritime Electric Co v General Dairies Ltd (1937) AC 610
1 citation
Jump To
Cite 1 - (1937) AC 610
McInerney v Schultz (1981) 28 SASR 542
1 citation
Jump To
Cite 1 - (1981) 28 SASR 542
Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 92 ALR 93
1 citation
Jump To
Cite 1 - (1990) 92 ALR 93
Morris v FAI General Insurance Co Ltd [1996] 1 Qd R 495
1 citation
Jump To
Cite 1 - [1996] 1 Qd R 495
Mynott v Barnard (1939) 62 CLR 68
1 citation
Jump To
Cite 1 - (1939) 62 CLR 68
Nicholas v Western Australia [1972] WAR 168
1 citation
Jump To
Cite 1 - [1972] WAR 168
Northern Assurance Co Ltd v Cooper [1968] Qd R 46
1 citation
Jump To
Cite 1 - [1968] Qd R 46
Territory Insurance Office v Adlington (1992) 84 NTR 7
1 citation
Jump To
Cite 1 - (1992) 84 NTR 7
Wilson v Austral Motors (Qld) Pty Ltd [1983] 2 Qd R 774
2 citations
Jump To
Cite 1 - [1983] 2 Qd R 774
Cite 2 - [1983] 2 Qd R 774

Cases Citing

Case NameFull CitationFrequency
Foster v Skilled Communication Services Pty Ltd [2002] QDC 2133 citations
Francis v Emijay Pty Ltd[2006] 2 Qd R 5; [2006] QCA 622 citations
Pertzel v Qld Paulownia Forests Ltd & Anor [2008] QDC 92 citations
1

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