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WorkCover Queensland v Wallaby Grip (BAE) Pty Ltd (in liq) & others[2021] QSC 332

WorkCover Queensland v Wallaby Grip (BAE) Pty Ltd (in liq) & others[2021] QSC 332

SUPREME COURT OF QUEENSLAND

CITATION:

WorkCover Queensland v Wallaby Grip (BAE) Pty Ltd (in liq) & others [2021] QSC 332

PARTIES:

WORKCOVER QUEENSLAND

(plaintiff)

v

WALLABY GRIP (BAE) PTY LTD (IN LIQUIDATION)

ACN 008 453 325

(first defendant)

WALLABY GRIP (NSW) PTY LTD (IN LIQUIDATION)

ACN 008 453 325

(second defendant)

CSR LIMITED

ACN 000 001 276

(third defendant)

FILE NO/S:

BS 2110 of 2019

DIVISION:

Trial Division

PROCEEDING:

Originating Application

DELIVERED ON:

17 December 2021

DELIVERED AT:

Brisbane

HEARING DATE:

2 October 2020; supplementary material and submissions received on 12 October 2020; further submissions received on 19 August 2021

JUDGE:

Burns J

ORDER:

The parties are directed to bring in minutes of order to reflect these reasons.

CATCHWORDS:

WORKERS’ COMPENSATION – INTERPRETATION – GENERAL RULES OF CONSTRUCTION OF INSTRUMENTS – GENERAL MATTERS – where an injured worker made application to the plaintiff for the payment of compensation under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) – where the injured worker also commenced a proceeding in the District Court for damages with respect to the same injury – where the District Court proceeding was commenced against two of the three defendants in this case – where the plaintiff later paid compensation to the injured worker – where the District Court proceeding was never served on the defendants and has not been renewed – where, by this proceeding, the plaintiff claims to be entitled to be indemnified by the defendants for the amount paid to the injured worker by way of compensation – where the plaintiff alleges that its entitlement to indemnification arises by reason of s 207B(8) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) – where that provision confers a right to indemnity where the injured worker has received compensation but has not recovered, or taken proceedings to recover, damages for the injury from another person, other than the worker’s employer – whether, by the District Court proceeding, the injured worker has taken proceedings to recover damages for the injury from another person, other than the worker’s employer

Acts Interpretation Act 1954 (Qld), s 14A, s 14B, s 36, Sch 1

Civil Liability Act 2003 (Qld), Sch 2

Employers’ Liability Acts, 1886 to 1888 (Qld)

James Hardie Former Subsidiaries (Winding Up and Administration) Act 2005 (NSW), s 32

Succession Act 1981 (Qld), s 66

Uniform Civil Procedure Rules 1999 (Qld), r 8, r 171, r 293

WorkCover Queensland Act 1996 (Qld), s 278

Worker’ Compensation and Rehabilitation (National Injury Insurance Scheme) Amendment Act 2016 (Qld), s 27

Workers’ Compensation and Rehabilitation and Other Acts Amendment Act 2007 (Qld), s 24

Workers’ Compensation Act 1905 (Qld)

Workers’ Compensation Act 1916 (Qld), cl 24

Workers’ Compensation Act 1990 (Qld), s 10.8

Workers Compensation Acts Amendment Act 1954 (Qld)

Workers’ Compensation Amendment Act 1909 (Qld)

Workers’ Compensation and Rehabilitation Act 2003 (Qld), s 207B

Workers’ Compensation and Rehabilitation and Other Acts Amendment Act 2007 (Qld)

Chen v ANZ Banking Group Ltd [2001] QSC 43, cited

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, cited

Deputy Commissioner v Salcedo [2005] 2 Qd R 232, cited

Queensland v Seltsam Pty Ltd [2019] Qd R 495, followed

R v A2 (2019) 93 ALJR 1106, followed

Spencer v The Commonwealth (2010) 241 CLR 118, cited

State of Queensland v Seltsam Pty Ltd [2019] 2 Qd R 495, cited

Taylor v The Owners – Strata Plan 11564 (2014) 253 CLR 531, cited

Tickle Industries Pty Ltd v Hann (1974) 130 CLR 321, cited

Unions (NSW) & Ors v State of New South Wales (2019) 264 CLR 595, cited

WorkCover Queensland v Amaca Pty Ltd (2010) 241 CLR 420, cited

WorkCover Queensland v Wallaby Grip Limited & Anor [2021] QCA 11, cited

COUNSEL:

K F Holyoak for the respondent plaintiff

G W Diehm QC, and T Moisidis, for the applicant first and second and defendants

R M Treston QC, and M Windsor, for the applicant third defendant

SOLICITORS:

BT Lawyers for the respondent plaintiff

Zambra Legal for the applicant first and second defendants

Edmondson Legal for the applicant third defendant

  1. [1]
    The plaintiff, WorkCover Queensland, is the statutory insurer for workers’ compensation in Queensland. By this proceeding, it claims indemnity for compensation paid by it to an injured worker from each of the defendants, that is to say, Wallaby Grip (B.A.E.) Pty Ltd (in liquidation), Wallaby Grip (N.S.W.) Pty Ltd (in liquidation) and CSR Limited. This right to indemnification is alleged by the plaintiff to arise by virtue of s 207B(8) of the Workers’ Compensation and Rehabilitation Act 2003 (Qld).
  2. [2]
    Each of the defendants applies to strike out the plaintiff’s statement of claim or, in the alternative, seeks summary judgment against the plaintiff in respect of the whole proceeding.
  3. [3]
    The injured worker, Mr Maguire, contracted malignant mesothelioma allegedly in consequence of the inhalation of asbestos dust and fibres emanating from products manufactured, supplied or installed by one or more of the defendants. He was said to have been exposed to the dust and fibres when working for Queensland Alumina Pty Ltd at its smelter in Gladstone between 1972 and 1974 and, later, for various companies providing services to the Gladstone Power Station between 1974 and 1981.
  4. [4]
    On 2 June 2015, Mr Maguire lodged an application for compensation with the plaintiff in respect of his disease. Then, on 27 July 2015, his lawyers started a proceeding in the District Court of Queensland at Brisbane by the filing of a claim and statement of claim in which he sought damages against the Wallaby Grip defendants as well as Amaca Pty Ltd (formerly, James Hardie & Co Pty Ltd).[1] He did not sue CSR.
  5. [5]
    On 13 August 2015, the plaintiff accepted Mr Maguire’s claim and paid him $761,627 by way of compensation.
  6. [6]
    It is common ground that the District Court proceeding was never served and nor has the claim been renewed.[2] As to this, the solicitor for the plaintiff, Mr Thomas, deposed to a “practice” amongst lawyers acting for a person afflicted with mesothelioma to start a proceeding in court with respect to their client’s common law claim at the same time as application was made to the plaintiff for compensation. This, he perceived, was commonly done to “secure the benefit of” s 66(2A) of the Succession Act 1981 (Qld) to “prevent the loss of the claim for general damages” in the event of the death of the client and to preserve the common law claim if the application for compensation was not accepted.[3] It should however be observed that there was no direct evidence that Mr Maguire’s lawyers adopted this practice when they made application on his behalf for compensation and, almost two months later, filed the claim and statement of claim in the District Court. Be that as it may, having reviewed the file maintained by the plaintiff in relation to Mr Maguire’s application for compensation, Mr Thomas was able to swear that the District Court proceeding was filed prior to the plaintiff making any decision on Mr Maguire’s application and without notice having been given to the plaintiff that such a proceeding would be (or had been) commenced.
  7. [7]
    That said, in August 2015, the plaintiff notified the defendants to this proceeding of its intention to claim indemnity for the compensation it paid to Mr Maguire. Subsequent and, it seems, protracted attempts to resolve that claim failed. Accordingly, on 27 February 2019, the plaintiff commenced the subject proceeding.
  8. [8]
    As to the constitution of this proceeding, the affidavit material before the court explains why the plaintiff did not proceed against Amaca. That was because it was placed under a form of external administration regulated by the James Hardie Former Subsidiaries (Winding Up and Administration) Act 2005 (NSW). By s 32(3) of that Act, statutory recovery claims such as the subject claim can only be met if, amongst other things, there is a surplus in the charitable trust established by the Act, but there is no surplus. Otherwise, it appears that CSR was included as a defendant because it is alleged to be responsible in one way or another with the other defendants for Mr Maguire’s mesothelioma.
  9. [9]
    On 26 August 2020, the Wallaby Grip defendants filed an application in which an order is sought that the plaintiff’s statement of claim be struck out pursuant to r 171(2) of the Uniform Civil Procedure Rules 1999 (Qld) on the ground that it fails to disclose a reasonable cause of action[4] or, in the alternative, that they be granted summary judgment pursuant to r 293(2) UCPR in respect of the whole of the proceeding on the grounds that the plaintiff has no real prospect of succeeding on its claim and there is no need for a trial.[5] On 23 September 2020, CSR filed an application in which identical relief is sought.
  10. [10]
    These are the two applications about which these reasons are concerned.
  11. [11]
    Section 207B WCRA is in these terms:

“Insurer’s charge on damages for compensation paid

(1)  This section applies to—

  1. (a)
    an injury sustained by a worker in circumstances creating—
  1. (i)
    an entitlement to compensation; and
  1. (ii)
    a legal liability in the worker’s employer, or other person, to pay damages for the injury, independently of this Act; and
  1. (b)
    damages that an employer is not indemnified against under this Act.
  1. (2)
    An amount paid as compensation to a person for an injury, to which there is an entitlement to payment of damages at a time or for a period before the person becomes entitled to payment of damages by an employer or another person, is a first charge on any amount of damages recovered by the person to the extent of the amount paid as compensation to the person.
  1. (3)
     Subsection (2) applies to compensation paid under chapter 4A only if the damages include treatment, care and support damages.
  1. (4)
     An employer or other person from whom the damages are recoverable must pay the insurer the amount of the first charge or, if the damages are not more than the amount of the first charge, the whole of the damages.
  1. (5)
     Payment to the insurer under subsection (4), to the extent of the payment, satisfies the liability of the employer or other person for payment of the damages.
  1. (6)
     A person can not settle, for a sum less than the amount that is a first charge on damages under subsection (2), a claim for damages had by the person independently of this Act for an injury to which there is an entitlement to payment of damages without the insurer’s written consent.
  1. (7)
     If, without the insurer’s consent, a settlement mentioned in subsection (6) is made, then to the extent that the damages recovered are insufficient to meet all payments due to the insurer under this section—
  1. (a)
    the insurer is entitled to be indemnified by the employer or other person who is required by the settlement to pay the damages; and
  1. (b)
    to that end, the insurer is subrogated to the rights of the person who has sought the damages, as if the settlement had not been made.

(8) If a person who has received compensation has not recovered, or taken proceedings to recover, damages for the injury from another person, other than the worker’s employer—

  1. (a)
    the insurer is entitled to be indemnified for the amount of the compensation by the other person to the extent of that person’s liability for the damages, so far as the amount of damages payable for the injury by that person extends; and
  1. (b)
    to that end, the insurer is subrogated to the rights of the person for the injury.
  1. (9)
    Payment made as indemnity under subsection (8), to the extent of the payment, satisfies the person’s liability on a judgment for damages for the injury.
  1. (10)
     In addition to all rights of action had by the insurer to give effect to its right to indemnity under this section, all questions about the right and the amount of the indemnity may, in default of agreement, be decided by an industrial magistrate if all persons affected by the indemnity consent.
  1. (11)
     In this section —

damages includes damages under a legal liability existing independently of this Act, whether or not within the meaning of section 10.”[6] [Emphasis in original]

  1. [12]
    Section 207B(8) WCRA was considered in State of Queensland v Seltsam Pty Ltd.[7] In that appeal, Morrison JA (with whom Fraser and McMurdo JJA agreed) provided this summary of the nature of the right conferred on the plaintiff by the provision:

“[T]he following principles reflect the established law in respect of the nature of the right given to [the plaintiff] under s 207B of the WCRA:

  1. (a)
     the policy of a provision such as s 207B is to ensure that ‘an employer who paid statutory compensation to an injured employee or, in the case of his death, to his dependants, where the injury or death, though occurring in the course of employment, was caused by the wrongful act or omission of another person, was to be entitled to be indemnified against the payment of that compensation by that other person”;
  1. (b)
     the claim to enforce the entitlement to indemnity is not a claim in tort, rather it is a cause of action created by statute for indemnity against the person liable to pay damages to another;
  1. (c)
     the liability of such a s 207B defendant is a ‘notional liability at common law … for pecuniary and non-pecuniary loss … having regard to limitations on the liability of the wrongdoer to the person who has received compensation’;
  1. (d)
     the entitlement under [s 207B(8)] of the WCRA is not a claim for damages, but a cause of action created by statute for indemnity against a person liable to pay damages to another; the wrongdoer’s liability is an ingredient of the statutory right;
  1. (e)
     the statutory right of indemnity conferred by [s 207B(8)] upon the insurer who has paid the compensation [the plaintiff] is not to be equated with the cause of action which the worker would have had against the wrongdoer; [s 207B(8)] creates a cause of action separate to that vested in the worker;
  1. (f)
     this is so, notwithstanding the fact that it is an ingredient of the statutory right that the person from whom the indemnity is sought was liable to pay damages to the worker; the action is merely brought to recover the statutory indemnity, and although proof of neglect or default in the s 207B action is necessary in order to claim the indemnity, the action is not brought in respect of that neglect or default;
  1. (g)
     the right to indemnity is not based upon the default of the person alleged to be liable;  ‘he derives his right to make a claim against the defendants, not because of their act or a default, but because the Act … has imposed a liability upon them to indemnify him if he has had to pay compensation to his injured workman by reason of that neglect or default …’;
  1. (h)
     a claim under [s 207B(8)] is not one for, or including, damages in respect of personal injury;
  1. (i)
     the relevant time of the assessment of the wrongdoer’s liability, as an ingredient of the statutory right, is the time of the occurrence of the compensable injury, but the statutory right ‘does not require the continuance of persistence of the liability’;
  1. (j)
     section [s 207B(8)(a)] is an ‘acknowledgment of the independence of the cause of action vested in the insurer by that provision from that of the person to whom the insurer has paid compensation, in this case the worker.  It is the independence of this cause of action from that of the worker that … allowed the insurer to pursue an indemnity following the death of the worker.  It is also why a right of indemnity exists even when the cause of action of the worker is time-barred under the relevant statute of limitations’; and

(k) the cause of action under [s 207B(8)] does not accrue until the payment of compensation is made, but then accrues on each occasion that a payment of compensation is made.

[The plaintiff’s] claim … under [s 207B(8)] is not tortious in character, nor is it a claim for damages or a subrogation claim.  It is not a claim derivative of any claim of the worker.  Rather, …  a claim under [s 207B(8)] is a sui generis cause of action for a statutory indemnity, inhering in [the plaintiff] and to be pursued in its name, in which the common law liability of the person to the worker is a statutory element, but it is not in respect of the acts or omissions in that liability.”[8] [Citations omitted]

  1. [13]
    It is uncontroversial that the threshold requirements of subsection (1) of s 207B can be satisfied on the undisputed facts of this case. What, however, is at issue is the proper construction of subsection (8) and, even more narrowly than that, the meaning to be ascribed to the words in the chapeau to that subsection emphasised below:

“(8) If a person who has received compensation has not recovered, or taken proceedings to recover, damages for the injury from another person, other than the worker’s employer—".

  1. [14]
    In this regard, the statement of claim alleges that the defendants, as suppliers or manufacturers of asbestos products, negligently caused Mr Maguire’s mesothelioma.[9] It is then alleged that, had Mr Maguire taken proceedings to recover damages from one or all of the defendants in respect of his disease, he would have commenced such proceedings in the Dust Diseases Tribunal of New South Wales, obtained a judgment in that proceeding on the basis that the disease was caused by the negligence of each defendant and been awarded damages in a sum not less than $761,627.[10] It is next pleaded that Mr Maguire lodged an application for compensation with the plaintiff and was paid compensation ($761,627) on 13 August 2015.[11] Lastly, it is pleaded that the plaintiff is entitled pursuant to s 207B(8) WCRA “to be indemnified by” the defendants for the compensation paid to Mr Maguire.[12]
  2. [15]
    To succeed on a claim for statutory indemnification pursuant to s 207B(8) WCRA, it will be necessary for the plaintiff to plead, and then prove, as a necessary ingredient of its claim[13] that Mr Maguire “has not recovered, or taken proceedings to recover, damages for his injury” from another person, other than his employer. There is no pleading to that effect in the statement of claim although, in each reply filed in response to the defences filed on behalf of the defendants, the plaintiff pleads that Mr Maguire has not “taken proceedings” against the defendants because: (1) the District Court proceeding was commenced “solely for the purpose of preserving his entitlement to pursue his right of action in respect to his injury in the event the plaintiff did not accept his claim for compensation under the WCRA”; (2) he has “not taken any steps to advance” the proceeding to “settlement or judgment”; and (3) he has not “pursued any remedy” against the defendants under the District Court proceeding.[14]
  3. [16]
    In support of their applications, the defendants contend that the plaintiff can never plead, let alone prove, that Mr Maguire has not recovered, or taken proceedings to recover, damages for his mesothelioma. To the contrary, they submit, the evidence filed in support of their applications establishes that Mr Maguire commenced the District Court proceeding and, as such, the plaintiff can have no right to statutory indemnification under s 207B(8) WCRA. In that regard, they argue that the natural meaning of the words used in the statute should be applied and that, if a person has filed a proceeding in a court, he or she must be regarded as having “taken proceedings”.[15] They therefore submit that the plaintiff’s claim is doomed to fail and should be summarily terminated by the entry of judgment in their favour.
  4. [17]
    There is a further issue, and it concerns CSR. Unlike the Wallaby Grip defendants, CSR was not named as a defendant in the District Court proceeding. On the face of s 207B(8), the person identified as “that person” in paragraph (a) would appear to be one and the same as the person referred to as “another person” in the chapeau. Nonetheless, CSR argues that the commencement of that proceeding still bars any claim for statutory indemnification against it in this proceeding. In that regard, CSR contends that where, as here, the compensated worker commenced a proceeding for the injury in relation to which the compensation was paid, it matters not whether all possible tortfeasors are joined as defendants in that proceeding; the plaintiff will not have a right of indemnity because the worker has taken proceedings with respect to the same injury.
  5. [18]
    The defendants’ contentions having now been outlined, I turn to the competing construction arguments.
  6. [19]
    For over a century, the legislative scheme for workers compensation in this State has conferred on the plaintiff and its statutory predecessors the benefit of a statutory charge on recovered damages and an accompanying right to indemnity against wrongdoers in certain circumstances. The rationale for the statutory indemnity is clear enough. As Barwick CJ said in  Tickle Industries Pty Ltd v Hann[16] with respect to a  provision akin to s 207B(8) WCRA, the policy of the provision is to ensure that an insurer who has paid statutory compensation to an injured employee where the injury, although occurring in the course of employment, was caused by a wrongful act or omission of another person is entitled to be indemnified against the payment of that compensation by the other person.[17] In this way, the insurer can recoup from tortfeasors, other than the employer, the compensation paid to the injured worker for the benefit of the scheme under which the compensation was paid.
  7. [20]
    Under the Workers’ Compensation Act 1916 (Qld),[18] where the injury for which compensation was payable was caused under circumstances creating a legal liability in “some other person” to pay damages in respect of the injury, the injured worker could take proceedings against that person to recover damages and apply for compensation but he or she was not entitled to do both and, if the worker received compensation, the insurer was entitled to be indemnified by the person liable to pay the damages.[19] There was no provision in that statute like s 207B(8) WCRA, and that remained the position until the passing of the Workers’ Compensation Acts Amendment Act 1954 (Qld). That resulted in the insertion, relevantly, of a provision that applied where a worker had received compensation but had not “recovered any damages” from the employer or any “other person legally liable for” the damages.[20] In that event, the insurer was entitled to be “indemnified by that employer or other person to the extent of his liability”.[21]
  8. [21]
    The whole scheme was replaced with the passing of the Workers’ Compensation Act 1990 (Qld) and that is where a provision like s 207B(8), and the expression from its chapeau under present consideration, first appeared. It was in these terms:

“If a person to whom or on whose account compensation under this Act is paid in respect of an injury to which this section applies has not recovered, or taken proceedings to recover, damages in respect of the injury from a person other than the worker's employer, the Board is entitled to be indemnified for the amount of such compensation by such last-mentioned person to the extent of such person's liability for such damages, so far as the amount of damages payable in respect of the injury by such person extends and, to that end, the Board is hereby subrogated to the rights of the first-mentioned person in respect of the injury.”[22] [Emphasis added]

  1. [22]
    In the Explanatory Notes for the Bill for the 1990 Act, the following appears:

“Clause 10.8 specifies that:

  • any compensation paid to a worker shall become [a] first charge against any damages settlement;
  • if a claimant does not exercise the right to claim damages, then the Board is entitled to rights of subrogation;
  • a worker shall not settle a claim for damages for less than the amount paid in compensation, without the consent of the Board.”[23]
  1. [23]
    The 1990 Act was replaced by the WorkCover Queensland Act 1996 (Qld). In that statute, the relevant provision appeared in this form:

“If a person who has received compensation has not recovered, or taken proceedings to recover, damages for the injury from another person, other than the worker’s employer —

  1. (a)
     WorkCover is entitled to be indemnified for the amount of the compensation by the other person to the extent of that person’s liability for the damages, so far as the amount of damages payable for the injury by that person extends; and

(b)  to that end, WorkCover is subrogated to the rights of the person for the injury.”[24]

  1. [24]
    The Explanatory Notes for the Bill for the 1996 Act include this:

“WorkCover’s charge on damages for compensation paid

Clause 278 replaces section 190 of the Workers’ Compensation Act 1990 and has not changed except for being updated according to current drafting practice and to include a different meaning of damages, than that in chapter 1, for use in this section only.

In a situation where the worker’s employer is not indemnified by this legislation or another person has a legal liability to pay damages for the injury independently of this legislation, this clause ensures that WorkCover can recover any workers’ compensation paid from damages awarded as a first charge. Any question relating to indemnity can be decided by an industrial magistrate if both parties agree.

An example of the application of this clause would be where a worker is injured in a work related motor vehicle accident and receives workers’ compensation benefits for this injury. If damages are payable by the driver of an insured motor vehicle, the amount of workers’ compensation paid must be deducted by the motor vehicle insurer and paid to WorkCover, prior to paying any other party’s charges or the worker their settlement.

It also allows WorkCover to take an action to recover compensation paid directly from the employer or other person if the person to whom compensation was paid has not taken, or does not intend to take, any action to recover the amount of compensation paid or has recovered insufficient damages to reimburse the compensation to WorkCover. Recovery of the total amount of workers’ compensation paid by WorkCover satisfies the person’s liability for damages.”[25] [Emphasis in original].

  1. [25]
    To complete the picture, the 1996 Act was replaced by the WCRA. It will therefore be seen that the expression under consideration first appeared in the 1990 Act and was then continued in existence in the 1996 Act as well as in the WCRA. But, of course, it would be wrong to consider the meaning of that expression in isolation. It must be considered in the context of s 207B and the WCRA as a whole.
  2. [26]
    By s 207B(2), supported as it is in its operation by subsections (3) to (7), where an injured worker has received compensation under the WCRA and that compensation was, as it almost always is, paid before the worker became entitled to a payment of damages by his or her  employer or another person, the amount paid as compensation becomes a first charge on any amount of damages recovered by the worker to the extent of the amount paid as compensation. Then by, subsection (4), the employer or other person from whom the damages are recoverable must pay the statutory insurer (i.e., the plaintiff in this case) the amount of the charge or, if the damages are not more than the amount of the charge, the whole of the damages. Subsections (6) and (7) are concerned with negotiated settlements. The compensated worker cannot settle for a sum less than the amount of the charge without the insurer’s written consent. If consent is not obtained, but a settlement is reached, then to the extent that the damages recovered are insufficient to meet the amount of the charge, the insurer is entitled to be indemnified by the employer or other person who is required by the settlement to pay the damages and, to that end, the insurer is subrogated to the rights of the compensated worker as if the settlement has not been made. Lastly of relevance, there is subsection (8).
  3. [27]
    Between 1954 and 1990, where a compensated worker had not recovered any damages from the employer or any other person liable to pay damages with respect to his or her injury, the insurer was entitled to be indemnified by the employer or other person to the extent of the compensation paid. That meant that the insurer could commence a proceeding against another person for indemnity unless the compensated worker had already done so and recovered damages. Importantly, the insurer was not obliged to wait until the outcome of any proceeding commenced by the worker before seeking indemnity. To the point, there would be no reason why the insurer could not commence a proceeding for indemnity before, or at the same time as, a proceeding by the worker for damages for the same injury in relation to which compensation was paid.
  4. [28]
    Whether that actually occurred in practice is not the subject of any evidence on these applications but, if it did, such a duplication of proceedings may not have been thought desirable. In any event, and whatever the practice, the 1990 Act put that issue beyond doubt because, where the worker had taken proceedings to recover damages, it required the insurer to await the outcome of that proceeding. That may not have been spelt out in the Explanatory Notes for the 1990 Bill or in the terms of the relevant amendment – the insertion of the words, “or taken proceedings to recover”– but that could be the only logical reason for the amendment. If the worker’s proceeding then results in the recovery of damages, the earlier subsections of s 207B WCRA then have the effect of creating a charge over those damages to the extent of the amount paid by way of compensation.
  5. [29]
    The defendants’ construction of the provision[26] is entirely literal. It would mean, if correct, that the mere commencement of a proceeding is enough to forever defeat the right of indemnity and, if CSR’s further contention[27] is correct, it would mean that the mere commencement of a proceeding by the worker against any tortfeasor is enough to forever defeat the right of indemnity from every tortfeasor. It would also mean that the second limb of the chapeau – the actual recovery of damages – would have no work to do because, without more, the right to statutory indemnification would be lost once the recovery proceeding was filed. Whether that proceeding later resulted in recovery of damages would be irrelevant on the defendants’ construction of the provision although, oddly, a charge would still attach to any damages that were recovered.
  6. [30]
    The adoption of such a literal approach can be problematic. In Tickle Industries,[28] Barwick CJ made these pertinent observations:

“[I]n my opinion, if the evident policy of the present legislation is appreciated and allowed to take its proper place in the process of interpretation, much of the difficulty, caused so often by undue literalism, can be avoided and, in reality, disappears.”[29]

  1. [31]
    Consistently with those observations, it has long been accepted that the meaning of the words of a provision will depart from their usual literal meaning when the context and scheme of the provisions show that the words do not bear that literal meaning.[30] As Keifel CJ and Keane J said in R v A2,[31] the method to be applied in construing a statute to ascertain the intended meaning of the words used “commences with a consideration of the words of the provision itself, but it does not end there”.[32] Indeed, where the literal meaning does not conform to the evident purpose or policy of a particular provision, it is entirely appropriate for the courts to depart from the literal meaning.[33] After all, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.[34]
  2. [32]
    Here, the mischief to which s 207B WCRA is directed and the purpose of the statute is not advanced by interpreting subsection (8) in such a way that the insurer’s rights are removed when the worker starts, but does not pursue, a recovery proceeding. Instead, the words in the chapeau, “has not recovered, or taken proceedings to recover, damages” constitute a temporal limitation on the insurer’s entitlement to indemnification with the effect that the insurer is required to stay its hand for so long as there exists a proceeding by the compensated worker in which the recovery of damages is in prospect and over which a charge could attach under s 207B(2) WCRA. Such a proceeding must necessarily be one that retains, as its active purpose, the exercise by the worker of his or her right to pursue damages against another person, other than his or her employer. Construed in this way, the rights of the insurer to indemnification will be suspended for so long as there is a proceeding on foot which retains that active purpose. Where, for example, the worker has commenced a proceeding but, by the time the indemnity is claimed, the proceeding has been abandoned, it could not be said that the worker has taken proceedings to recover damages in the sense required by the provision. Any such proceeding would by then be devoid of the purpose which the provision explicitly requires i.e., to recover damages.
  3. [33]
    I add that, contrary to submissions made on behalf of the defendants, this construction is not inconsistent with the 1990 or 1996 Explanatory Notes. The expression was introduced in the 1990 Act and was not altered in the 1996 Act. One would therefore expect that, if there was anything of relevance to this interpretive exercise in the Explanatory Notes,[35] it would appear in the 1990 version. There, it is noted that the insurer is entitled to its rights of subrogation if the “claimant does not exercise the right to claim damages”. It cannot be said that a compensated worker has exercised, or is exercising, his or her right to claim damages if a proceeding is commenced but not pursued. The 1996 Explanatory Notes are neither here nor there; they merely confirm that the insurer may seek indemnity if the compensated worker “has not taken, or does not intend to take, any action to recover the amount of compensation paid”.
  4. [34]
    Otherwise, the Wallaby Grip defendants submitted that the construction I have arrived at will “invite the examination, from case to case, of the intentions of any plaintiff who had commenced a proceeding against a tortfeasor with respect to the future conduct of that proceeding”.[36] That is not correct. What is required is an objective assessment of the status of any recovery proceeding. That is of course a factual enquiry but so, too, would be an enquiry about whether a proceeding has been “taken”. CSR made a similar submission and added that this construction would “superimpose an assessment of the prospects of the underlying injured workers claim, or a critique as to how the proceeding is run, which is not contemplated by the text” of s 207B(8) WCRA “or on its ordinary reading”.[37] That submission is only partly correct. It is true that the construction I have arrived at is not “contemplated” by an “ordinary reading” of the provision but I have taken a purposive approach to determining the meaning of the words used and, relevantly to this submission, the temporal limitation introduced by those words. It was also submitted by CSR that this construction would “make the section practically unworkable because it would no longer be the fact of proceedings that would be the question, but whether those proceedings were to be fruitful, not for the injured worker, but for [the insurer] in a recovery and indemnity context”.[38] That submission misunderstands the nature of the limitation and the policy underlying it, that is to say, to await the outcome of recovery proceedings, not to assess the worker’s prospects of success.
  5. [35]
    For these reasons, the construction of s 207B(8) WCRA contended for by the defendants cannot be accepted. It is therefore unnecessary to consider the further issue raised in connection with CSR.
  6. [36]
    Notwithstanding that conclusion, the statement of claim is still defective for the reason earlier identified.[39] However, the jurisdiction to grant summary judgment ought not be exercised if the plaintiff can improve its position by proper amendment to the pleading.[40] Similarly, although relief in the form of a strike-out may be granted, that will in such a case almost always be accompanied by a grant of leave to re-plead. Given the content of the replies filed in response to the defences, the plaintiff should have an opportunity to re-plead, and directions made to facilitate that. There will also be a question to be answered regarding the appropriate costs order to be made with respect to the applications.
  7. [37]
    For these reasons, the parties will be directed to bring in minutes of order to reflect these reasons.

Footnotes

[1]  No 2957 of 2015.

[2]  Under the UCPR, the proceeding is stale unless renewed: r 24(1).

[3]  Section 66 of the Succession Act 1981 (Qld) makes provision for the survival of actions. By s 66(2A), damages for “pain and suffering, for any bodily or mental harm or for curtailment of expectation of life”, may be recovered if the cause of action related to personal injury resulting from a “dust-related condition”, the deceased commenced a proceeding in relation to the cause of action before he or she died and the death was a result of the “dust-related condition” or was contributed to by that condition. By s 66(10), “dust-related condition” includes mesothelioma. See Civil Liability Act 2003 (Qld), Schedule 2.

[4]  As to which, see Spencer v The Commonwealth (2010) 241 CLR 118, [131].

[5]  See Deputy Commissioner v Salcedo [2005] 2 Qd R 232, [3], [11]-[13].

[6]  Section 207B(8) WCRA was previously located at s 272(7) WCRA. On the coming into force of s 24 of the Workers’ Compensation and Rehabilitation and Other Acts Amendment Act 2007 (Qld), the provision was relocated to s 207B(7) WCRA and, subsequently, by s 27 of the Worker’ Compensation and Rehabilitation (National Injury Insurance Scheme) Amendment Act 2016 (Qld), renumbered as s 207B(8). At the time when the Court of Appeal considered the provision in Seltsam, it was numbered s 207B(7).

[7] State of Queensland v Seltsam Pty Ltd [2019] 2 Qd R 495.

[8] Queensland v Seltsam Pty Ltd [2019] Qd R 495, [16]-[17]. And see WorkCover Queensland v Amaca Pty Ltd (2010) 241 CLR 420, [15]-[19]; WorkCover Queensland v Wallaby Grip Limited & Anor [2021] QCA 11, [20].

[9]  Statement of claim filed on 27 February 2019, para 8.

[10]  Statement of claim, para 9.

[11]  Statement of claim, paras 10 and 11.

[12]  Statement of claim, para 12.

[13] WorkCover Queensland v Amaca Pty Ltd (2010) 241 CLR 420, [53].

[14]  Reply to the defence of the third defendant filed on 13 May 2020, para 11(d); reply to the defence of the first defendant filed on 17 June 2020, para 8(e); reply to the defence of the second defendant filed on 17 June 2020, para 8(e).

[15]  In this regard, the defendants point to the definition of “proceeding” in Schedule 1 of the Acts Interpretation Act 1954 (Qld) as “a legal or other action or proceeding” and to UCPR r 8(1) UCPR which provides that a proceeding starts when the originating process is issued by the court.

[16] Tickle Industries Pty Ltd v Hann (1974) 130 CLR 321

[17] Tickle Industries Pty Ltd v Hann (1974) 130 CLR 321, 326. And see WorkCover Queensland v Amaca Pty Ltd (2010) 241 CLR 420, [27].

[18]  Which statute repealed the Workers’ Compensation Act 1905 (Qld), the Workers’ Compensation Amendment Act 1909 (Qld) and the Employers’ Liability Acts, 1886 to 1888 (Qld).

[19] Workers’ Compensation Act 1916 (Qld), cl 24.

[20]  Clause 24A.

[21]  Clause 24A(3).

[22] Workers’ Compensation Act 1990 (Qld), s 10.8(3).

[23] Workers’ Compensation Bill 1990 (Qld), p 15. There was no mention of the specific provision in the Second Reading Speech given on 8 November 1990.

[24] WorkCover Queensland Act 1996 (Qld), s 278(7).

[25] WorkCover Queensland Bill 1996 (Qld), pp 109-110.

[26]  Summarised above at [16].

[27]  Summarised above at [17].

[28] Tickle Industries Pty Ltd v Hann (1974) 130 CLR 321.

[29] Tickle Industries Pty Ltd v Hann (1974) 130 CLR 321, 333.

[30] Taylor v The Owners – Strata Plan 11564 (2014) 253 CLR 531, [37], [65]-[66]; R v A2 (2019) 93 ALJR 1106, [32]-[37]; Unions (NSW) & Ors v State of New South Wales (2019) 264 CLR 595, [171].

[31] R v A2 (2019) 93 ALJR 1106.

[32] R v A2 (2019) 93 ALJR 1106, [32].

[33] Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, 321; R v A2 (2019) 93 ALJR 1106, [37]; Taylor v The Owners – Strata Plan 11564 (2014) 253 CLR 531, [37]; R v A2 (2019) 93 ALJR 1106, [32]-[37].

[34] Acts Interpretation Act 1954 (Qld), s 14A(1).

[35]  As to which, see s 14B of the Acts Interpretation Act 1954 (Qld).

[36]  Submissions on behalf of the First and Second Defendants dated 19 August 2020, para 7.

[37]  Third Defendant’s Further Supplementary Submissions dated 19 August 2021, para 2.

[38]  Third Defendant’s Further Supplementary Submissions dated 19 August 2021, para 2.

[39]  Above at [15].

[40] Chen v ANZ Banking Group Ltd [2001] QSC 43, [1].

Close

Editorial Notes

  • Published Case Name:

    WorkCover Queensland v Wallaby Grip (BAE) Pty Ltd (in liq) & others

  • Shortened Case Name:

    WorkCover Queensland v Wallaby Grip (BAE) Pty Ltd (in liq) & others

  • MNC:

    [2021] QSC 332

  • Court:

    QSC

  • Judge(s):

    Burns J

  • Date:

    17 Dec 2021

  • Selected for Reporting:

    Editor's Note

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2021] QSC 33217 Dec 2021-
Notice of Appeal FiledFile Number: CA558/2212 Jan 2022-
Notice of Appeal FiledFile Number: CA561/2213 Jan 2022-
Appeal Determined (QCA)[2022] QCA 20421 Oct 2022-

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Chen v Australian & New Zealand Banking Group Ltd [2001] QSC 43
2 citations
Jump To
Cite 1 - [2001] QSC 43
Cite 2 - [2001] QSC 43
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
2 citations
Jump To
Cite 1 - (1981) 147 CLR 297
Cite 2 - (1981) 147 CLR 297
Deputy Commissioner of Taxation v Salcedo[2005] 2 Qd R 232; [2005] QCA 227
2 citations
Jump To
Cite 1 - [2005] 2 Qd R 232
Cite 2 - [2005] 2 Qd R 232
Queensland v Seltsam Pty Ltd [2019] Qd R 495
2 citations
Jump To
Cite 1 - [2019] Qd R 495
Cite 2 - [2019] Qd R 495
R v A2 (2019) 93 ALJR 1106
6 citations
Jump To
Cite 1 - (2019) 93 ALJR 1106
Cite 2 - (2019) 93 ALJR 1106
Cite 3 - (2019) 93 ALJR 1106
Cite 4 - (2019) 93 ALJR 1106
Cite 5 - (2019) 93 ALJR 1106
Cite 6 - (2019) 93 ALJR 1106
Spencer v The Commonwealth (2010) 241 CLR 118
2 citations
Jump To
Cite 1 - (2010) 241 CLR 118
Cite 2 - (2010) 241 CLR 118
State of Queensland v Seltsam Pty Ltd [2019] 2 Qd R 495
2 citations
Jump To
Cite 1 - [2019] 2 Qd R 495
Cite 2 - [2019] 2 Qd R 495
Taylor v Owners - Strata Plan No 11564 (2014) 253 CLR 531
3 citations
Jump To
Cite 1 - (2014) 253 CLR 531
Cite 2 - (2014) 253 CLR 531
Cite 3 - (2014) 253 CLR 531
Tickle Industries Pty Ltd v Hann (1974) 130 CLR 321
5 citations
Jump To
Cite 1 - (1974) 130 CLR 321
Cite 2 - (1974) 130 CLR 321
Cite 3 - (1974) 130 CLR 321
Cite 4 - (1974) 130 CLR 321
Cite 5 - (1974) 130 CLR 321
Unions NSW v New South Wales (2019) 264 CLR 595
2 citations
Jump To
Cite 1 - (2019) 264 CLR 595
Cite 2 - (2019) 264 CLR 595
WorkCover Queensland v Amaca Pty Ltd (2010) 241 CLR 420
4 citations
Jump To
Cite 1 - (2010) 241 CLR 420
Cite 2 - (2010) 241 CLR 420
Cite 3 - (2010) 241 CLR 420
Cite 4 - (2010) 241 CLR 420
WorkCover Queensland v Wallaby Grip Limited(2021) 7 QR 63; [2021] QCA 11
2 citations
Jump To
Cite 1 - [2021] QCA 11
Cite 2 - [2021] QCA 11

Cases Citing

Case NameFull CitationFrequency
Wallaby Grip (BAE) Pty Ltd (in liq) v WorkCover Queensland(2022) 12 QR 189; [2022] QCA 2049 citations
1

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