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Dey v Victorian Railways Commissioners

Dey v Victorian Railways Commissioners

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Case Copied 22 February 1949 82 min read

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ICTORIAN RAILWAYS COMMISSIONERS Workers' Compensation-Injury by accident arising out of or in course of employ-

ment-Death of worker-Negligence of employer-Option of dependants to apply for compensation or take other proceedings-Award of compensation obtained by MELBOURNE,

widow on behalf of herself and children-Effect of award as barring claim by 1948,

dependants under Lord Campbell's Act-Workers' Compensation Acts 1928- Oct. 25-27;

1946 (No. 3806-No. 5128) (Vict.)*-Wrongs Act 1928 (No. 3807) (Vict.), 1949,

Part III.-The 1946 Workers' Compensation Rules, rr. 8, 81.° Practice-Supreme Court (Vict.)-Dismissal of action-Abuse of process-Inherent

jurisdiction-Rules of the Supreme Court (Vict.), Order XXV., rr. 2, 4.

A worker having died in such circumstances that compensation under the Workers' Compensation Acts 1928-1946 (Vict.) was payable by the employer, the worker's widow instituted proceedings as claimant before the Workers' Compensation Board constituted under the Acts. She was not aware that she had the option referred to in S. 5 (2) (b) of the Workers' Compensation Act 1928 to take proceedings independently of the Act. The Board made an award which was entitled in the matter of a claim for compensation made by the * The Workers' Compensation Act

course of the employment is caused to 1928 (Vict.) provides -By S. 3 (2):

a worker his employer shall subject as Any reference to a worker who has

hereinafter mentioned be liable to pay been injured shall where the worker is

compensation in accordance with the dead include a reference to his legal

provisions of the Workers' Compensa- personal representative or to his depen-

tion Acts. (2) Provided that (2006) IPR

dants or other person to whom or for

when the injury was caused whose benefit compensation is pay-

by the personal negligence or wilful able." By S. 5 (as amended): (1)

act of the employer or of some person If in any employment personal injury

for whose act or default the employer by accident arising out of or in the

78 CLR 63

widow it recited that the deceased had left a widow and four children under H. sixteen years of age wholly dependent on him and awarded the sum of £1,100 to be paid into the custody of the Board. The amount awarded was that provided in such a case by par. 1 (1) (a) (i) of the First Schedule to the Workers' Com- pensation Act 1946 (which, by S. 4 (2) of that Act, is substituted for the Second Schedule to the Act of 1928). The employer paid the amount of the award into the custody of the Board, which, at the request of the widow's solicitor, retained it pending an investigation of the legal position. Subsequently the widow brought against the employer an action (which, on the application of the defendant, was transferred from the County Court to the Supreme Court of Victoria) for the benefit of herself and the children under Part III. of the Wrongs Act 1928 (Vict.). On a summons taken out by the defendant seeking the dismissal of the action on the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1949] HCA 1
Decision Date: 22 February 1949

CaseChat Overview and Summary

The case of *Dey v Victorian Railways Commissioners* involved a dispute concerning the dependants of a deceased worker, Gordon Dey, and his employer, the Victorian Railways Commissioners. Following Dey's death from an injury sustained in the course of his employment, his widow, on behalf of herself and their four young children, lodged a claim for workers' compensation. An award of £1,100 was made by the Workers' Compensation Board, and this sum was paid by the Commissioners into the custody of the Board. Subsequently, the widow, unaware of her option to pursue common law proceedings, initiated an action against the Commissioners for damages under the Wrongs Act 1928 (Vict.). The employer applied to the Supreme Court of Victoria to dismiss this action, arguing it constituted an abuse of process due to the prior compensation award.

The central legal issues before the Supreme Court of Victoria were whether the dependants were entitled to maintain a common law action for damages under the Wrongs Act 1928 after an award of compensation had been made under the Workers' Compensation Acts 1928-1946 (Vict.), and whether the Supreme Court possessed the inherent jurisdiction to dismiss such an action as an abuse of process. Specifically, the court had to consider the effect of section 5(2)(b) of the Workers' Compensation Act 1928, which provided dependants with an option to either claim compensation or take proceedings independently of the Act, and the implications of an award made under the latter.

The High Court, by a majority of three to two, held that the widow was not entitled to maintain the common law action in her own right, as the acceptance of a workers' compensation award barred her from pursuing independent proceedings. However, the Court unanimously agreed that the infant children were competent to sue for damages through their next friend. The Court also made observations regarding the procedure adopted in the Supreme Court and the inherent power of the court to dismiss actions deemed frivolous, vexatious, or an abuse of process. The decision of the Supreme Court of Victoria was varied accordingly.

Orders