WorkCover Queensland v Nand
[2002] QDC 317
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- WorkCover Queensland v Nand[2002] QDC 317
- Add to List
WorkCover Queensland v Nand[2002] QDC 317
WorkCover Queensland v Nand[2002] QDC 317
DISTRICT COURT | No D3285 of 2001 |
CIVIL JURISDICTION
JUDGE ROBIN QC
WORKCOVER QUEENSLAND | Plaintiff |
and
JOSEPH NAND | Defendant |
BRISBANE
DATE 30/10/2002
CATCHWORDS:
UCPR rule 292 - application for summary judgment - employee suffered injury from work accident and compensation was paid by plaintiff - separate District Court action by the employee determined current defendant was the employer - unsuccessful appeal in that action on the basis of “new evidence” - plaintiff applicant argued same outcome would be expected in the current matter and summary judgment should be given - court considered estoppel existed - WorkCover bound by outcome of earlier proceedings - summary judgment given on basis of that estoppel - Bernstrom v. National Australia Bank Limited [2002] QCA 231 considered.
ORDER
HIS HONOUR: This is a very novel attempt to invoke UCPR Rule 292 by the plaintiff, WorkCover Queensland. It claims, in the action, a judgment of $237,657.97 before interest is added consisting of the following components:
Compensation paid to Jason Croney: | $158,388.75 |
Unpaid premium: | $ 25.00 |
Premium penalty: | $ 50.00 |
Compensation penalty: | $ 79,194.32 |
The last item is self evidently 50 per cent of the first.
Mr Nand, the defendant, is claimed to have been the employer of Mr Croney in a business called “Neil's Tree Lopping” at the time when Mr Croney suffered a work accident on 15th March 1991. He made a successful claim for compensation payments from the plaintiff asserting that Mr Nand was the employer, a proposition Mr Nand has denied on the basis that he had divested himself of the business (which he had originally acquired from Neil) before the time of the accident.
The issue was the principal one determined by Judge McGill SC in Plaint Number 524 of 1994 in which Mr Croney sued Mr Nand and in which the present plaintiff played no part. However, the situation was such that if Mr Croney succeeded, as has happened, he would have the right which he invoked in an effective way to be paid his damages by WorkCover under sections 183 and 184 of the Workers' Compensation Act 1990.
In his comprehensive reasons for judgment his Honour determined that on the balance of probabilities at the relevant time Mr Nand was the employer. It is fair to say that his Honour acknowledged that other views were open. However, he gave a closely reasoned basis for the conclusion he reached.
The judgment sum ordered by his Honour was substantially less than that now sought against Mr Nand. His situation accordingly commands some sympathy, but if he was the employer and failed to comply with the employer's obligations under the legislation, then it must be expected he'll have to pay the price.
He appealed against the judgment in the District Court unsuccessfully. A preliminary to the rejection of his appeal was an application to adduce further evidence on the appeal, the subject of the reported case, Croney v. Nand (1999) 2 Queensland Reports 342. It seems to me unnecessary to repeat here a summary of the evidence of the two ladies whose affidavits were offered to the Court of Appeal and whose evidence is offered in these proceedings should a trial be had. They are Kamal Lata Croney, who is apparently the stepmother of Jason John Croney and Shainaz Bano Ali, the daughter-in-law of a Mr Kumar who did give evidence, apparently by telephone, before Judge McGill. In 1998 these ladies gave evidence of observing conversations whose subject was of the disposal of the business by Mr Nand.
The Court of Appeal refused to allow the new evidence to be given, saying, inter alia, that “The totality of the admissible evidence set out in both affidavits would not be likely to have an important influence on the result of the case” (page 346, paragraph 24).
The basis on which Mr Mullins for the plaintiff/applicant seeks to invoke Rule 292 is this: bearing in mind judicial assessment of the evidence which has previously been given and is now available, the same outcome ought to be anticipated, namely, that it would be determined that Mr Nand was the employer of Mr Croney at the relevant time. That is the central issue in these proceedings in the claim made by the plaintiff, which it says is one “the defendant has no real prospect of successfully defending”, to use the words of Rule 292(2)(a). It's an unprecedented situation, in my experience, and involves ventilation of issues in a way that one might anticipate in an ADR procedure. That's not to say it is inappropriate under the new summary judgment regime in Rules 292 and 293 which is quite different from the former one as the Court of Appeal has recently made clear in Bernstrom v. National Australia Bank Limited (2002) QCA 231, notably in approving statements of Lord Woolf in Swain v Hillman (2001) 1 All England Reports 91, 92 in paragraph 37 of Jones J's reasons.
While I am prepared to regard the situation as unprecedented, it seems to me that the unusual approach the plaintiff takes of submitting that there's no basis for thinking that the outcome in this case would be any different from that reached by Judge McGill - while it is a novel idea - is a legitimate one to pursue for the purposes of Rule 292. Mr Mullins has available for tendering, if required, the transcript of evidence before Judge McGill. Of course, that evidence was not all to similar effect, the defendant having given evidence, for example, contrary to evidence in the plaintiff's case.
It seems to me Mr Mullins is placing reliance on Judge McGill's assessment of that evidence which, for practical purposes, has been confirmed in the Court of Appeal. It is logically and legally correct that another Judge faced with the same evidence might reach a different conclusion on the crucial issue. If this matter goes to trial the evidence will not be exactly the same, unless of course the parties agree that the evidence given before should be used. That is another reason why the outcome could be different.
While in my experience it is highly unusual to have an argument of the kind that has unfolded today by reference to evidence given in another action and the way in which it was assessed, Mr Byrne, appearing for the defendant/respondent Mr Nand, appears to have adopted a practical, common sense approach which I think ordinary people in the community (as opposed, perhaps, to lawyers) would appreciate, of confronting a situation in which his client has lost the first time around, so to speak.
He relies on the argument, which of course is logically open, that the result might be different next time around. If the evidence remains as it is, I think that is unlikely to be so.
I have perhaps become responsible for encouraging Mr Mullins to present an argument which he had prepared but did initially advance to the effect that an estoppel arose from the earlier District Court proceedings.
The identity of issues is clear. The identity of parties is less clear. As was made clear in the High Court in Ramsay v. Pickering (1968) 118 CLR 271 279, the requirement of identity of parties may be satisfied, notwithstanding that the parties are different, where there exists privity between a party in the concluded action and a party in the action in which the estoppel is raised. Privity may arise from blood, title or interest. See Cross on Evidence, Australian Edition, 5050.
It is true that privity, especially from “interest”, is difficult to establish and that most of the cases, like Ramsay, are illustrations of its not being established. See, for example, Shears v Chisholm (1994) 2 VR 535, 543 ff; Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 108 ALR 335, 342 ff.
An interesting case of privity arising by reason of Statute with which there may be an analogy in the Workers' Compensation Act provisions, already mentioned, is Stewart v Government Insurance Office of New South Wales (1996) 39 New South Wales Law Reports 531. I would rely in particular on what Mahoney P said at 536E to 537E:
“In my opinion, the present position is different from the positions discussed Ramsay v Pigram. Subject to one matter, the effect of s 14 is merely to substitute GIO for Mr Maitland as the defendant in the claim arising out of the use of a motor vehicle. The liability of GIO is determined, and determined only, by those facts which, had s 14 not been passed in the relevant form, would have determined the liability of Mr Maitland. In such a case, there would, in my opinion, be privity for purposes of the estoppel, viewed either as the result of ‘an act in law’ in the sense referred to in Halsbury and the authorities there referred to: see Halsbury (at par 1543(xi)); or as involving privity in interest in the sense referred to in, for example, Ramsay v Pigram.
There are two matters to be considered in this regard: the effect of s 14(3) and the requirement of mutuality to which McTiernan J referred in Ramsay v Pigram.
Section 14(3) adds to the provision in s 14(1) by providing, in a sense, the mode of liability of GIO: GIO is to ‘...be liable as if it were the owner or driver of the motor vehicle in relation to which the claim is made.’ On one construction, those words would suggest the imposition of a personal or direct liability, as distinct from the derivative s 14(1) liability. On another construction, it indicates merely that GIO is to be liable only and precisely as if the (actual) owner or driver of the vehicle would be liable under the general law. I am inclined to think the second construction is correct. On this basis, it is proper to treat the liability of GIO as derivative in the sense to which I have referred.
There is perhaps an apparent difficulty in applying the concept of mutuality, according to its terms, in such a case as this. This is a case in which the nature of the liability imposed upon GIO is such that GIO could seldom, if ever, be seen as plaintiff in a relevant proceeding. But if the plaintiff Mr Stewart had succeeded in the Compensation Court proceeding, the estoppel created would no doubt equally bind GIO and in that sense the estoppel here in question is mutual.
There is, in my opinion, good sense in holding that the estoppel exists in the present case. It is clearly established in this State that findings in the Compensation Court may operate as an estoppel in a common law claim in this Court. It could not have been the intention of the legislature, in enacting s 14 as it did, to interfere with such a position or to achieve the result that GIO could not, standing in the shoes of its (insured) defendant, raise a similar estoppel. There appears no point in taking a different view of the effect of the provisions. No purpose will be served by doing so.
I am conscious that it has been said that estoppels are odious and that they should not be upheld unless they satisfy precisely the provisions of the law: see Baxendale v Bennett (1878) 3 QBD 525 at 529, per Bramwell LJ. But equally there is authority that estoppel, by res judicata and otherwise, performs a useful public function in reducing or putting an end to litigation and preventing an individual being vexed twice for the same cause: Lockyer v Ferryman (1877) 2 App Cas 519 at 530; see generally the Carl Zeiss Stiftung (No 2) litigation (at 909 et seq, 946). The mischief with which the new s 14 was to deal - the establishment of GIO as a general insurer - would not be furthered by destroying the previously available estoppel. The constitution of the then established statutory fund would not be forwarded. These matters are, I think, relevant in determining the effect which the legislature intended the amendments to s 14 to have.
For these reasons I am of opinion that the decision of Sharp J was correct. I would dismiss the appeal with costs.”
The requirement that the litigant, which was not formally a party in the concluded proceedings, must satisfy by showing it was bound, and was always going to be bound, whether the decision in the concluded proceedings was favourable or unfavourable to it, discussed in Carl Zeiss Stiftung v Rayner and Keeler Limited (No 3) (1970) Chancery 506 at 541 is, I think, clearly satisfied here.
As well as Stewart, there's a local example of an insurer permitted to take advantage of, or alternatively, be bound by an estoppel arising from earlier proceedings in which, unlike the later ones, it was not a party: see Webb v Davey (1982) Queensland Reports 356.
In this case both Judge McGill and the Court of Appeal accepted, and Judge McGill expressly stated - did the Court of Appeal state it?
MR MULLINS: My recollection is they did, your Honour, yes.
HIS HONOUR: That WorkCover would be obliged to satisfy the judgment.
Although it's hard to place the circumstances of this case in any of the categories discussed, for example in Halsbury - paragraph 1543 and following, I've concluded that there is an estoppel here, the basis of the earlier proceedings being that WorkCover would be bound by the outcome.
To the extent I'm a traditionalist, I prefer to base my conclusion that the present application should succeed on such an estoppel. If driven to express a view on the novel basis relied on by Mr Mullins I would say his client is entitled to success on that basis as well.
What's the order you want in consequence of that?
MR MULLINS: Your Honour, there has been no calculation of interest. Can we submit to your Honour's associate a form of order. If your Honour were prepared to order that judgment be given in respect of some claims plus - I have only claimed interest in the submissions. Interest is claimed in the statement of claim on all of the judgment. I don't think it's appropriate that we claim interest on the penalty, only the amount paid, and that's what my submissions set out. Can we submit to your Honour-----
HIS HONOUR: And from when, the date of the claim?
MR MULLINS: Date of the issue of proceedings.
HIS HONOUR: All right.
MR MULLINS: If your Honour orders that interest be paid on that basis we can submit to your associate a detailed-----
HIS HONOUR: All right. I'll do that.