Bowes Investments Pty Ltd v Deputy Chief Judge Fong Lim - [2023] NTSC 64

CITATION:Bowes Investments Pty Ltd v Deputy Chief Judge Fong Lim & Ors [2023] NTSC 64
PARTIES:BOWES INVESTMENTS PTY LTD

v
DEPUTY CHIEF JUDGE FONG LIM
And
ALCAN GOVE PTY LTD

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:2022-01301-SC
DELIVERED:  10 August 2023
HEARING DATE:  2 August 2022
JUDGMENT OF:  BLOKLAND J
CATCHWORDS:

COURTS – JURISDICTION – WORK HEALTH COURT – whether Work Health Court has jurisdiction to hear an application for relief to obtain the benefit of a statutory indemnity – whether principal contractor entitled to indemnity from subcontractor – construction of statute when determining whether court has jurisdiction – held, Work Health Court has jurisdiction to determine whether principal contractor has the benefit of the statutory indemnity.

Local Court (Civil Procedure) Act 1989 (NT)
Local Court Act2015 (NT)
Motor Accidents (Compensation) Act1979 (NT)
Return to Work Act 2018 (NT) ss 2, 3A, 61, 62, 104, 126A, 127, 132, 176
Work Health Act 1986 (NT)
Work Health Administration Act2011 (NT) ss 14, 15
Work Health and Safety (National Uniform Legislation Act) 2001 (NT)
Catford v Laminex Group Pty Ltd [2023] NTCA 7; Consolidated Press Holdings v Limited v Wheeler [1999] NTSC 58; Hopkins v QBE Insurance Ltd [1994] NTSC 33; Josephson v Walker (1914) 18 CLR 691; Laminex Group Pty Ltd v Catford [2021] NTSC 92; Mallison v Scottish Australian Investment Co Ltd (1920) 28 CLR 66; Melesco Manufacturing Pty Ltd v Thompson (1996) 40 NSWLR 525; New South Wales State Brickworks v Abi-Arraj (1995) 38 NSWLR 94; Wheeler v Rocter NT Pty Ltd & Ors; Work Health Court , 9 October 1995; William Sergeant v MPJ Insurance Enterprises and QBE Insurance (Australia) Ltd [2021] NTLC 017, referred to.
REPRESENTATION:
Counsel:
Plaintiff:D McConnel SC
First Defendant: Not applicable
Second Defendant T Anderson

Solicitors:
Plaintiff:Hunt & Hunt as town agent for Rees R & Sydney Jones
First Defendant Not applicable
Second Defendant: Roussos Legal Advisory

Judgment category classification:    B
Judgment ID Number:  BLO2311
Number of pages:  26

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Bowes Investments Pty Ltd v
Deputy Chief Judge Fong Lim & Ors [2023] NTSC 64

No. 2022-01301-SC

BETWEEN:
BOWES INVESTMENTS PTY LTD

Plaintiff
AND:
DEPUTY CHIEF JUDGE FONG LIM

First Defendant
AND:
ALCAN GOVE PTY LTD

Second Defendant

REASONS FOR JUDGMENT
(Delivered 10 August 2023)

CORAM: BLOKLAND J

Background

By originating motion the plaintiff (‘Bowes’) sought a declaration that the Work Health Court did not have jurisdiction to hear and determine proceedings commenced by the second defendant (‘Alcan’).[1]
The question to be determined here is whether the Work Health Court has jurisdiction to hear an application for relief which ultimately relies on a claim to a statutory indemnity created by the Return to Work Act 2018 (NT) (‘the Act’). The Work Health Court Judge found the Court possessed the jurisdiction to hear the claim.
Bowes claimed the decision of the Work Health Court on the question of its jurisdiction to hear the case was ‘invalid by reason of jurisdictional error’[2] and that this Court should make a declaration to that effect, quash the decision by an order in the nature of certiorari,[3] make an order in the nature of mandamus or grant associated forms of relief.[4]
Alcan was the principal contractor of the work place where Mr Burgess, (‘the worker’) suffered an injury arising out of or in the course of his employment within the meaning of the Act.[5] Bowes was the sub-contractor who employed the worker at the time he suffered the injury while working at an Alcan site.
Alcan accepted the worker’s claim for compensation and paid the compensation the worker was entitled to under the Return to Work Act. Alcan was required, as the principal contractor, to meet the worker’s claim for compensation in accordance with s 127(1) and (2) of the Return to Work Act. The proceedings in the Work Health Court initiated by Alcan relied on s 127(3) of the Return to Work Act. Under s 127(3) Alcan would be entitled to an indemnity in its favour against Bowes if it could establish Bowes was liable to pay compensation to the worker under the Act. Section 127, which governs questions of payment as between a worker, principal contractor and a subcontractor provides:
127 Subcontracting
(1)Where a person (in this section called a principal contractor) contracts with another person (in this section called a subcontractor) for the execution by or under the subcontractor of work undertaken by the principal contractor in the course of the principal contractor's business or trade, the principal contractor is liable to pay compensation under this Act to a worker employed by the subcontractor in the execution of that work as if the worker has been employed by the principal contractor.
(2)Where a claim for compensation from a principal contractor is made under this Act by a worker employed by a subcontractor:
(a)a reference in this Act to the worker's employer is to be read as including a reference to the principal contractor; and
(b)a reference in this Act to the worker's earnings is to be read as a reference to the worker's earnings from the subcontractor.
(3)A principal contractor who is liable to pay compensation under this section is entitled to be indemnified by any person who is liable to pay compensation to the worker other than by virtue of this section.
(4)Nothing in subsection (3) is to be construed as requiring the Nominal Insurer to indemnify a principal contractor.
(5)Nothing in this section is to be construed as preventing a worker from recovering compensation from the subcontractor instead of the principal contractor.
Although this is a sketch of the procedural history,[6] for any subsequent hearing about the claimed indemnity, through its defence, Bowes has raised numerous fundamental or threshold issues. Bowes puts a number of matters in issue,[7] including whether Mr Burgess was a worker within the statutory definition and the identity of the correct employer. Given Bowes denies the worker was working for Bowes at the relevant time, Bowes will also raise whether the worker suffered compensable injury and if so, which party is to bear the burden of payments. These are all matters in issue. While Alcan is entitled to the indemnity in its favour if it can establish Bowes was liable under the Return to Work Act to pay compensation to the worker, this procedure will require successfully establishing its case on each contested issue. Against that background of a proposed hearing on those issues, the challenge was made to jurisdiction. Alcan points out that Bowes may defend itself and dispute any matters it chooses, including by utilizing the statutory indemnity under s 176(3). Bowes maintains it would suffer limitations to the matters it seeks to raise if forced to defend itself in the Work Health Court.
In brief, the reasons given by the Work Health Court to dismiss the application are as follows.[8] The jurisdiction of the Work Heath Court is currently set out in s 14 of the Work Health Administration Act2011 (NT). Previously s 14 was enacted in the now repealed Work Health Act 1986 (NT). A court established by statute derives its jurisdiction from the statute which includes implied powers necessary for the discharge of its functions. The Return to Work Act is a code regulating the efficient financial assistance to, and rehabilitation of workers. It is beneficial legislation.
Further, the Work Health Court Judge reasoned that the Court is a specialist Court which is empowered to adjudicate relevant disputes concerning compensation for work injuries and associated matters. Some earlier decisions suggest the jurisdiction of the Work Health Court was confined to Part V of the former Work Health Act 1986 and currently the Return to Work Act. Some decisions have held jurisdiction of the Work Health Court did not extend to recovery of a debt arising for failure of payment, nor of taking enforcement measures.[9] More recent authority points to a broader fashioning of the Work Health Court’s jurisdiction. For example, in one recent case it was confirmed a counterclaim could be brought in circumstances where there was no specific provision in either Act which permitted the Work Health Court to entertain it in proceedings commenced by a worker.[10]
The Work Health Judge pointed out s 127(5) of the Return to Work Act requires the worker to have made an election to claim against the principal contractor and the sub-contractor. There is no requirement that liability must first be accepted or determined before s 127 is relied on, only that there is a claim for compensation from the worker who has elected to proceed against the principal contractor.[11]
Her Honour found cause to distinguish the earlier case of Hopkins v QBE Insurance[12] on the basis that when Martin J was determining whether a claim of debt arising from Part VII of the Work Health Act had sufficient connection with a claim for compensation under Part V, he found there was no sufficient nexus for the claim to be considered incidental to Part V. His Honour did not consider the additional phrase ‘arising out of’ which appears in s 14 of the Work Health Administration Act and s 104(1) of the Return to Work Act.[13]
In essence, her Honour found that without a claim for compensation there would be no basis for an indemnity claim. There was a claim for compensation in the relevant sense and that the Work Heath Court must have jurisdiction to deal with such matters. The position put on behalf of Bowes would undermine important principles of efficiency and effectiveness which underpin the Return to Work Act. Potentially Bowes’ contention would mean workers faced two sets of proceedings in which the same issues stood to be determined.[14]. This brief summary of the judgment does not do justice to her Honour’s insightful, detailed reasons, however I will return to those reasons as other issues are dealt with below.
The case before this Court
The case put on behalf of Bowes in this Court proceeded largely along similar lines as it did in the Work Health Court.
The jurisdiction of the Work Health Court is set out in s 14 of the Work Health Administration Act:
Jurisdiction of Court
The Court has the following jurisdiction:
(a)     under the Return to Work Act 1986, to hear and determine:
(i) claims for compensation under Part 5 of that Act; and
(ii)all other matters required or permitted by that Act to be referred to the Court for determination;
(b)under the Work Health and Safety (National Uniform Legislation) Act 2011, to hear and determine:
(i)     all applications made to the Court under that Act; and
(ii)all other matters required or permitted by that Act to be dealt with by the Court;
(c)to determine all matters and questions incidental to, or arising out of, matters before the Court;
(d)     any other jurisdiction conferred on it under any Act.
The Work Health Court’s jurisdiction is confined to its statute, which includes necessary implications required for it to function properly as a court. Bowes submitted s 14(a)(i) of the Work Health Administration Act is critical as it confines jurisdiction to ‘claims for compensation under Part 5’. Bowes contends the matter of a claim for the benefit of an indemnity is not a ‘claim for compensation under Part 5’, but rather is a type of claim dealt with in Part 7 of the Return to Work Act which inter alia regulates insurance including provisions relating to the Nominal Insurer.
Bowes acknowledged s 14(a)(ii) of the Work Health Administration Act allows the Court to hear ‘all other matters required or permitted by that Act to be referred to the Court for determination’, however pointed out that there is no express permission granted or any requirement specified for a claim under s 127 of the Act which requires it to be dealt with in the Work Health Court. Alcan argued that proceedings for the benefit of an indemnity is a matter falling under s 14(a)(ii). Further, Alcan submitted the question of whether a party has the benefit of an indemnity is the type of matter which may be referred to the Court through s 104 of the Return to Work Act.
Relying on Laminex v Group Pty Ltd v Catford (‘Catford’)[15] Bowes argued s 14(c) ‘questions incidental to, or arising out of, matters before the Court’ cannot provide an independent source of jurisdiction in a matter which is not otherwise permitted to be brought before the Court. Alcan agrees with that proposition. Catford confirmed that the Court’s jurisdiction is limited to matters arising under the Return to Work Act and the Work Health and Safety (National Uniform Legislation Act) 2001 (NT).[16] However, it also confirmed the construction of the provisions regarding the jurisdiction of the Work Health Court is not to be considered with a view to adding unnecessary restrictions.
I do not take the discussion by the Chief Justice in Catford about the extent of the Work Health Court’s jurisdiction to be limiting in the way suggested by Bowes. Quite the opposite is the case. A construction having regard to what was said in Catford would not put the Work Health Court beyond jurisdiction to hear the case for the remedy pursued by Alcan. I will deal with the balance of the plaintiff’s arguments in more detail below, but on the face of it, it is apparent the remedy sought may be regarded as a matter which the Act contemplates would be dealt with in the Work Health Court. Alternatively, I would have thought, depending on the circumstances and the progress or status of the underlying claim, a claim of this kind could potentially be regarded as a matter arising out of such a claim in terms of s 14(c). However, as indicated, Alcan does not rely on s 14(c) of the Work Health Administration Act and s 14(c) will not be considered further here. Neither does Alcan rely on s 14(b) or (d).
It was emphasized in Catford that because of its character as a specialist Court, the Work Health Court’s jurisdiction is both exclusive and exhaustive in the determination and enforcement of rights.[17] Further, given its specialist nature, and given that it was created to determine and enforce the rights and obligations under Part 5 of the Return to Work Act, the jurisdiction to ‘hear and determine claims for compensation’ is properly construed to include all matters arising out of a ‘claim’ within the meaning of s 80 of the Return to Work Act.[18] The filing of the counterclaim by the employer in Catford in response to the worker’s appeal against the cancellation or reduction of benefit was found to be within the Court’s jurisdiction to determine.[19]
The authorities relevant to interpreting provisions which confer or grant jurisdiction to a Court, emphasize that construction of those terms should not be restricted or limited by implication. Restrictions should be expressed clearly by the particular statute before they are relied upon to limit jurisdiction. My apprehension is that the plaintiff’s argument seeks an impermissibly restrictive or convoluted construction of the powers and conferral of jurisdiction on the Work Health Court. The argument seizes on examples of the express conferral of jurisdiction for some types of proceedings, however the fact that the Return to Work Act has such provisions does not mean by implication that other forms of relief are excluded from the exercise of the Court’s jurisdiction. That would not be in keeping with the authorities which analyse this subject.
For clarity I will set out the relevant paragraphs from Catford on the jurisdiction of the Work Health Court with which I respectfully agree, appreciating that some of the comments in the following passages are relevant to the particular issues in Catford: (Footnotes omitted)
[40]The worker’s argument follows that the Work Health Court’s jurisdiction is now restricted to hearing and determining claims for compensation and only such other matters expressly required or permitted under the terms of the Act to be determined by the Court. The examples of such matters postulated by counsel for the worker included determining the jurisdiction with which a worker’s employment is connected; determining the proportions in which a deceased worker’s dependants are to receive benefits; and interim determinations of compensation. That submission cannot be accepted the following reasons.
[41]The term ‘jurisdiction’ is an expression which is used in a variety of senses. As it is used in s 14 of the Work Health Administration Act, it denotes the authority of the Work Health Court to adjudicate upon a particular subject matter. The Work Health Court is a specialist tribunal, with two consequences. First, its jurisdiction is limited to matters arising under the Return to Work Act and the Work Health and Safety (National Uniform Legislation) Act 2011 (NT). Second, where a specialist tribunal is appointed by a statute to deal with matters arising under its provisions and to determine disputes concerning the granting of rights or privileges which are dependent entirely upon the statute, the tribunal’s jurisdiction is both exclusive and exhaustive in the determination and enforcement of those rights.
[42]Part 5 of the Return to Work Act continues to regulate both claim, cancellation and reduction procedures and the benefits available and payable under the legislation. Given the Work Health Court’s character and constitution as a specialist tribunal created to determine and enforce the rights and obligations arising under that Part, the jurisdiction ‘to hear and determine claims for compensation’ is properly construed to include all matters arising out of a ‘claim’ within the meaning of s 80 of the Return to Work Act. It is not limited to the hearing and determination of primary applications for compensation by a worker. The adoption of that construction is consistent with the principle expressed by the High Court in The Owners of the Ship ‘Shin Kobe Maru’ v Empire Shipping Company Inc that ‘[i]t is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words’. That principle was expressed in response to a submission that the conferral of jurisdiction in ‘a claim relating to ownership’ was limited to a claim by which a plaintiff asserted a right to possession, title or ownership, and did not extend to ancillary claims for equitable relief by third parties.
[43]Moreover, on the construction pressed by the worker, although the Court would have jurisdiction to hear and determine an ‘appeal’ against cancellation, because it is a matter expressly permitted by the legislation to be determined by the Court, in the event of formal defect in the Notice of Decision the Court is not permitted to consider the substantive case underlying the employer’s use of the legislative machinery to either cancel or reduce payments of compensation. In hearing and determining that disputation, an employer cannot be deprived of the opportunity to present its substantive case in relation to that claim for compensation – whether by way of defence, counterclaim or separate application heard together with the ‘appeal’. To construe the grant of jurisdiction otherwise would be antithetical to the judicial process and the essential characteristics of a court.
[44]The contrived nature of the construction pressed by the worker is demonstrated by the fact that in circumstances such as those presently under consideration, an employer would only be precluded from ventilating its substantive case in the event that the Notice of Decision was found to be invalid. If found to be valid, for the reasons and on the basis of the authority described above, the employer’s substantive contentions concerning the cessation of total incapacity and the level of partial incapacity would fall to be heard and determined in the context of the worker’s ‘appeal’. If a worker’s ‘appeal’ falls within the Court’s jurisdiction, so too must the employer’s substantive contentions.
[45]Even if I am wrong in that determination, s 14(a)(ii) of the Work Health Administration Act would invest the Court with jurisdiction to entertain a counterclaim by an employer asserting a substantive case as another matter ‘required or permitted by [the Return to Work Act] to be referred to the Court for determination’. As the Work Health Court identified in the reasons below, s 104 of the Return to Work Act permits a person to commence proceedings for an order or ruling in respect of a matter or question incidental to or arising out of a claim for compensation under Part 5. That formulation is broad enough to encompass either a separate application or a counterclaim by the employer, even if it were to be accepted that s 14(a)(i) of the Work Health Administration Act is not.

Bowes submitted this is not a case of compensation under Part 5 of the Return to Work Act, therefore there is no power for the Court to hear the matter by the conferral of jurisdiction under s 14(a)(i) Work Health Administration Act. Neither, it was argued can jurisdiction be claimed under s 14(a)(ii).
The Statement of Claim[20] pleads the claim is in accordance with s 127(3) of the Return to Work Act; further, that Bowes is to indemnify Alcan for compensation paid by Alcan to the worker as set out in the Particulars of Claim. The Particulars of Claim state the sum of $122,792.86 of compensation has been paid by the insurer to the worker on behalf of Alcan.[21] Bowes submitted there was no underlying claim for compensation and that Alcan has added the word ‘other’ to the usual standard Form 5A originating Application, signifying it is outside of the usual or accepted claims in the Work Health Court’s jurisdiction.
As mentioned, Bowes has pleaded numerous defences disputing liability at a fundamental level.[22] Bowes maintains the claim should have been filed and heard in the Local Court where there are no restrictions on the types of defences which may be pleaded or that may arise. Bowes suggested there are less restrictions on procedural matters which may well affect the outcome in Bowes’ favour, such as making an application to join a third party. This is in a context where Bowes positively pleads the worker was performing work for another party; that the principal contractor was the occupier of the site and had control of the site and the worker; that Alcan owed a duty to take reasonable care for the worker; that there was a breach of care and Alcan is liable to pay damages to the worker.[23]
Bowes maintains the Return to Work Act expressly provides for the circumstances in which a person may claim compensation or be required to bring their claim in the Work Health Court and as a result, those claims come within the terms of s 14(a)(ii) of the Work Health Administration Act. Bowes points out a claim for the benefit of an indemnity is not required to be brought in that sense. Provisions which may be contrasted with parts of the Return to Work Act providing an indemnity include, s 61(3) which deals with circumstances where under the Motor Accidents (Compensation) Act1979 (NT), the Motor Accidents Commission may recover from the employer and may claim compensation ‘under this Act’ on behalf of the worker.[24] It may be noted however, s 61(3) does not specifically mention Part 5 of the Return to Work Act, nor the Court itself, but the intention is clear that such a claim may be made, ‘under this Act’. Section 62(2)(b) of the Return to Work Act specifically permits a dependent of a worker to apply to the Work Health Court for a determination in certain circumstances. Section 126A of the Return to Work Act provides expressly that a prior insurer of a company may commence proceedings in the Work Health Court as does s 132(3) which permits an application to the Court to extend time for recovery of compensation against an approved insurer.
Those provisions which expressly confer jurisdiction cover subject matter over which there genuinely could be a question of jurisdiction given the exceptional nature of the type of claim in question. Those provisions allow for clarity where otherwise it may be uncertain. That is not the case here.
As mentioned, in Catford it was found the Return to Work Act confirmed a separate counterclaim may be filed in the Work Health Court by an employer which was within the ambit s 14(a)(ii) of the Work Health Administration Act. Additionally, it was found s 104 of the Return to Work Act was broad enough to allow the same, namely to permit a person to commence proceedings for ‘an order or ruling in respect of a matter or question incidental to or arising out of a claim for compensation under that Part.’ Senior Counsel for Bowes pointed out that the claim in Catford was always a proceeding under Part 5 of the Return to Work Act. Although that point is accepted, that factor does not mean that the broad approach to the construction of jurisdiction under the Work Health Act should not prevail when there are no strong countervailing factors militating against it.
Counsel for Bowes submitted the provisions which confer jurisdiction on the Work Health Court have an outer limit which serves the objects of the Return to Work Act. Reference was made to the Objects of the Act, which her Honour below also had regard to:[25]
(a)to provide for the effective rehabilitation and compensation of injured workers;
(b)to provide for the prompt and effective management of workplace injuries in a manner that promotes and assists the return to work of injured workers as soon as practicable;
(c)to ensure that the scheme for the rehabilitation and compensation of injured workers in the Territory:
(i)is fair, affordable, efficient and effective; and
(ii)provides adequate and just compensation to injured workers; and
(iii)is balanced to ensure that the costs of workers compensation are contained to reasonable levels for employers.
Drawn from the Objects of the Act, counsel for Bowes emphasised that the primary objective of the Return to Work Act was the resolution of claims for compensation by workers so that workers are not embroiled in litigation involving a multiplicity of issues and parties which would serve to defeat the objects of swift and economic resolution of claims for compensation. When challenged about the irony of the plaintiff’s position, namely that this is exactly what could happen if enforcement and remedies such as indemnities between employers or contractors were required to be filed in the Local Court, counsel replied the worker does not need to do anything beyond bringing a compensation claim under Part 5 of the Act.
The counter argument put on behalf of Alcan has significant force, namely that the Objects point to an underlying scheme which is as much about fairness and efficiency for employers as it is for workers. This is demonstrated by the reference in s 2(c)(iii) to ensuring that costs of workers compensation are contained to reasonable levels for employers.
Bowes points out the worker is no longer a party for the purposes of enforcement or as here, the claim to the benefit of an indemnity. While in some cases that may be so, in any disputed matter, the worker could well expect to be called as a witness as in the case of any compensation claim and subsequent complex Local Court proceedings where issues well beyond a claim, such as an indemnity will be pursued. The plaintiff’s position would narrowly confine the jurisdiction of the Work Health Court.
Counsel for Bowes drew attention to s 176 of the Return to Work Act which provides remedies against a person who is not the employer if legal liability lies against them for injury to the worker. Bowes suggested a remedy under s 176 is available. It suggests that Alcan should not be regarded the principal contractor as Alcan may been shown in a subsequent action to have paid compensation which it was not liable to pay. This approach would seem to unravel the anticipated course of proceedings in workers compensation matters.
Counsel for Bowes pointed to remarks in Catford detailing the history of the jurisdiction involving the evolution counterclaim procedures in the Work Health Court.[26] At [36] in Catford Grant CJ noted the jurisdiction to entertain a counterclaim by an employer was assumed on the basis that an employer could bring their own application under s 104 of the Return to Work Act.[27]
A person may, subject to this Act, commence proceedings before the Court for the recovery of compensation under Part 5 or for an order or ruling in respect of a matter or question incidental to or arising out of a claim for compensation under that part’.
Bowes argued the extracts set out above from Catford which were relied on in the Work Health Court in the present matter should be seen in the context only of claims for compensation under Part 5 of the Return to Work Act. When the subject of the claim is other than a compensation claim under Part 5, the broad approach set out in Catford should not apply but rather the outer limit of the court’s exclusive jurisdiction should be examined and applied.[28]
To demonstrate this approach was not unusual in workers compensation cases, in effect that some elements of proceedings are to be dealt with outside of the primary court or tribunal, reliance was placed on a series of cases commencing with New South Wales State Brickworks v Abi-Arraj.[29] That case concerned recovery of the workers weekly payments due to a false claim by the workers wife. Referring to arguments from counsel seeking recovery by reference to the ‘law of restitution’ Meagher J said:[30]
By this portmanteau expression, I assume he was referring to the common money counts and the law of constructive trusts. On this basis, the Court’s jurisdiction arose, as it was said, once a finding was made, which it had to be, that the worker was unjustly enriched. Secondly, there is a principle that once a superior court reverses or rescinds an order or judgment it may make all ancillary orders necessary to remit innocent parties to their original positions. See Production Spray Painting and Panel Beating Pty Ltd v Newham Court of Appeal 14 July 1992, unreported; Bond Brewing Holdings Ltd v National Australia Bank Ltd (No 2) (1990) 8 ACCC 403. It was on this second head of jurisdictions (or something not unlike it) that Bryson J, in a somewhat idiosyncratic judgment, relied in order to come to the conclusion that the Compensation Court had jurisdiction in cases like the present.
The judgement of Bryson J’s referred to by his Honour was Melesco Manufacturing Pty Ltd v Thompson.[31] Meagher J then noted the Compensation Court is not a superior court, its jurisdiction, powers and functions must be discovered in the express or implied terms of the Worker’s Compensation legislation which did not confer the power to order repayment of moneys wrongfully paid in certain circumstances. The consequences of further litigation were not sufficient to override conclusion drawn from the construction of the statute:[32]
One is reluctant to multiply litigation, and more than reluctant to endorse demarcation disputes between the courts, yet, nevertheless, I am of the view that the appeal should be dismissed with costs.
His Honour Clarke J, in the same case dealt with the worker’s argument that the relevant New South Wales section expressly authorised the Compensation Court to order the worker refund payments in particular circumstances not available in Abi-Arraj. It was held there was a clear legislative expression of limitation to those circumstances.[33] His Honour considered a further argument which the plaintiff broadly relies here to counter the claim to jurisdiction. Clarke J stated:[34]
In my opinion the resolution of the problem depends on the ambit of the expression “arising under this Act” in s 107. The liberal approach should be adopted to the interpretation of this clause if for no other reason than that, as a matter of practicality, it is more sensible to regard the Compensation Court as having authority vested in it to determine all questions which arise from the operation of the Workers Compensation Act. On the other hand if, as the employer asserts, s 107 has the width of meaning which it wishes to ascribe to it there would have been no need to include s 58 within the Act.
As above, Bowes placed significant reliance on Hopkins v QBE Insurance Ltd[35] when in the context of resolving a jurisdictional point, Martin J drew a distinction between compensation payable by an employer under Part V of the (previous) Work Health Act 1986 (NT) and the right of a worker to seek recovery from an authorised insurer of a debt due and payable by the insurer to the worker by the operation of s 132 and 133.
The Work Health Court Judge dealt with the question of whether a claim for debt can be equated to a claim for indemnity under s 127(3) when considering the question of jurisdiction. There is a distinction between s 132 (recovery of compensation from an insurer) and s 127 (indemnity claim). While both are under Part 7 of the Return to Work Act which is headed ‘Insurance’, the substance of s 127 does not deal with insurance per se, save to set some parameters which exclude the Nominal Insurer from indemnifying a principal contractor. [36]
Hopkins does not provide support for the plaintiff’s argument that the jurisdiction of the Work Health Court is limited in respect of determining reliance on the statutory indemnity in the same way that a debt arising as contemplated by s 132 may be. In any event, the subject matter in Hopkins differs substantially from the subject matter here. It was decided under a different statutory regime and over thirty years ago. It does not assist here.
When s 14(a)(ii) of the Work Health Administration Act is read with s 104 of the Return to Work Act, and in the light of the principles revealed in Catford, it is difficult to come to any other conclusion other than the Work Health Court possesses the jurisdiction to determine the application made by Alcan. Alcan, as above, do not rely on s 14(b)(c) or (d). It is not necessary for Alcan to show that its application is incidental to, or that it arises out of matters that are before the Work Health Court. Rather, and more directly, s 104(1) of the Act provides two grounds for proceedings. First is for recovery of compensation under Part 5 which is not relevant here as the worker was not required to file such a claim before the Court because the claim was accepted. Second, s 104(1) covers a proceeding for a ruling in respect of a matter or question incidental or arising out of a claim for compensation under Part 5. There is no reason to read the second part of s 104(1) as though it refers only to proceedings arising out of ‘recovery’ proceedings. The plain reading of the second limb of s 104(1) refers to the commencement of proceedings ‘for an order or ruling in respect of a matter or question incidental to or arising out of a claim for compensation under that Part’. The existence of a claim is sufficient to enliven that part of s 104(1). That a claim for compensation has been made is not disputed by any party. Relevant parts of the claim and the response, notifying the absence of an insurer are set out in the affidavit of Dominic Francis Jorgensen[37] which was read in these proceedings.
It may be accepted the worker is no longer a party to the proceedings. Although the case will be made by Alcan that the worker was the plaintiff’s employee, Alcan accepts he was injured at their site and that the plaintiff was Alcan’s subcontractor. On the face of it, given the obligations of Alcan, Alcan was required to meet the worker’s claim to comply with s 127(1) and (2). The worker was entitled to elect under s 127(5) to recover from either the principal contractor or the subcontractor.
In a broad answer to the grievance held by the plaintiff that it will be effectively unable to dispute various parts of the claim, it must be remembered that while s 127(3) provides potential indemnity in the circumstances, Alcan may be required to establish liability on the part of Bowes. Additionally, s 176(3) permits recovery via a further indemnity to remedy short falls that might ordinarily be available by claims of contribution of another party or set-off. The Work Health Court has jurisdiction to deal with all of these issues as this is a proceeding for an order or ruling in respect of a matter on question incidental or arising out of a claim under Part 5. Such a claim is clearly capable of coming within s 14(a)(ii) if the Work Health Administration Act ‘all other matters required or permitted … to be referred to the Court for determination’.
In further answer to the plaintiff’s apprehension of the thwarting of potential defences, s 15 of the Work Health Administration Act vests the Work Health Court with all of the powers that the Local Court has under the Local Court Act2015 and the Local Court (Civil Procedure) Act 1989 in relation to any proceeding. Those powers are in addition to powers conferred by other Acts on the Work Health Court.
In this matter I am strongly drawn to the conclusion the Work Health Court has jurisdiction to determine the indemnity issue, both those provided under s 127 and s 176. Both arise out of a claim for compensation. It is not appropriate in these proceedings to attempt to determine whether the jurisdiction of the Work Health Court is exclusive. As stated in Catford[38] the Work Health Court is ‘to hear and determine claims for compensation’ which is properly construed to include all matters arising out of a ‘claim’ within the meaning of the Return to Work Act. ‘It is not limited to hearing and determination of primary applications for compensation by a worker’.[39] The plaintiff’s case here is inconsistent with what was said about the Court’s jurisdiction in Catford.
Although not determinative, as the jurisdiction of the Work Health Court was not contested in Consolidated Press Holdings v Limited v Wheeler[40] and the associated cases, those cases tend to demonstrate that issues associated with s 127 are incidental to or arise out of compensation claims and are determined in the Work Health Court. However, because the point was not argued, these cases are of no significant assistance.
Although Josephson v Walker[41] deals primarily with the question of exclusive jurisdiction in the industrial setting, of some relevance here is Isaac J’s declaration that if a statute, properly construed means that a ‘right and the remedy are inseparable’, they are combined and essential ‘parts of a new scheme of public policy’. Although not necessarily a case of exclusive jurisdiction, in this matter the right to claim compensation and the remedy (from the appropriate party, by means of an indemnity in favour of one if necessary) are closely connected, so much so that if it is open on proper construction, the right and the remedy should be dealt with in the same court.
I have come to the same conclusion as the Work Health Court Judge. The Work Health Court has jurisdiction to consider the application brought by Alcan under s 127 of the Return to Work Act.
The plaintiff’s application for judicial review is dismissed.
The Court will hear the parties as to costs and liberty to apply is granted should a party require a ruling or order.
A courtesy letter about delay of reasons will be sent to counsel with the reasons.
These reasons are to be forwarded to counsel and the solicitors for the parties.
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[1] The First Defendant submitted to the jurisdiction of the Court, and did not seek to be heard. The Work Health Court proceeding is No. 2021-03509-LC. The plaintiff, Bowes Investments Pty Ltd was the respondent to the substantive proceedings and filed the application to strike out Alcan’s claim for an indemnity under the Return to Work Act 2018 (NT).

[2]Originating Motion, 1.2.

[3] Originating Motion, 2.

[4] Originating Motion, 3 and Originating Motion, 4, seeks a stay the proceedings and costs.

[5] Return to Work Act; s 3A.

[6] Above at [4] and [5].

[7] Exhibit 2; Notice of Defence.

[8] Alcan Gove Pty Ltd v Bowes Investments Pty Ltd trading as Zebra Metals & Environmental Services No. 2021-030509-LC, 22 March 2022, Deputy Chief Judge Fong Lim.

[9] Hopkins v QBE Insurance Ltd [1994] NTSC 33; William Sergeant v MPJ Insurance Enterprises and QBE Insurance (Australia) Ltd [2021] NTLC 017.

[10] Laminex Group Pty Ltd v Catford [2021] NTSC 92.

[11] Alcan Gove Pty Ltd v Bowes Investments Pty Ltd trading as Zebra Metals & Environmental Services No. 2021-030509-LC at [20].

[12] [1991] NTSC 33; Alcan Gove Pty Ltd v Bowes Investments Pty Ltd trading as Zebra Metals & Environmental Services No. 2021-030509-LC, 22 March 2022, Deputy Chief Judge Fong Lim at [10]-[14], [24]-[25].

[13] Ibid at [20].

[14] Alcan Gove Pty Ltd v Bowes Investments Pty Ltd trading as Zebra Metals & Environmental Services No. 2021-030509-LC, 22 March 2022, Deputy Chief Judge Fong Lim at [35].

[15] [2021] NTSC 92, relying on [41]-[43], [45] per Grant CJ. It may be noted Catford was the subject of appeal in Catford v Laminex Group Pty Ltd [2023] NTCA 7. The Court of Appeal upheld the point that a counter-claim was within the jurisdiction of the Work Health Court when brought by an employer with respect to enlarging issues in a s 69 Notice. The Court of Appeal rejected the argument there was any change as a result of amendments to s 14 of the Work Health Administration Act.

[16] Ibid at [41].

[17] Ibid.

[18] Catford at [41].

[19]The reasoning with respect to this part of Catford was upheld in Catford v Laminex Group Pty Ltd [2023] NTCA 7.

[20] Affidavit of Dominic Francis Jorgensen, sworn 20 May 2022 at 200-204.

[21]Ibid at 203.

[22] Exhibit 2, Notice of Defence.

[23] Exhibit 2; Notice of Defence at [14].

[24] Return to Work Act; s 61(3)(c)(d).

[25] Return to Work Act; s 2.

[26] Laminex Group Pty Ltd v Catford [2021] NTSC 92 at [34]-[36] Grant CJ, citing Disability Services v Regan [1998] NTCA 77; (1998) 8 NTLR 73, 78-79, per Mildren J.

[27] Return to Work Act, s 104(1).

[28] Mallison v Scottish Australian Investment Co Ltd (1920) 28 CLR 66 at 76, distinguishing Josephson v Walker (1914) 18 CLR 691.

[29] (1995) 38 NSWLR 94.

[30] Ibid at 98.

[31] (1996) 40 NSWLR 525.

[32] New South Wales State Brickworks v Abi-Arraj 38 NSWLR 94 at 95.

[33] Ibid at 96.

[34] Ibid at 97.

[35]Unreported, 22 May 1991.

[36]Section 127(4).

[37]Sworn 20 May 2022.

[38]At [42].

[39]Ibid.

[40][1999] NTSC 58; Kearney J; Wheeler v Rocter NT Pty Ltd & Ors; Work Health Court, 9 October 1995; Gray CM.

[41](1914) 18 CLR 691 at 701, cited in Catford at [41].