Foster v Skilled Communication Services P/L - [2002] QDC 213

DISTRICT COURT OF QUEENSLAND

CITATION:

Foster v Skilled Communication Services P/L [2002] QDC 213

PARTIES:

IAN CLYDE FOSTER
Applicant
v
SKILLED COMMUNICATION SERVICES PTY LTD (ABN 067 943 873)
First Respondent
and
WORKCOVER QUEENSLAND
Second Respondent

FILE NO:

2766 OF 2002

PROCEEDING:

Application for declarations

DELIVERED ON:

26 July 2002

DELIVERED AT:

Brisbane

HEARING DATE:

18 July 2002

JUDGE:

Judge Brabazon Q.C.

ORDERS:

(a)       Declare that the respondents are estopped from            asserting that the first respondent was required to            provide against its liability to the plaintiff, according            to the law of New South Wales.

(b) Order that leave be granted to the applicant to commence proceedings against the first respondent for the claim pursuant to s 305 of the WorkCover            Queensland Act 1996.

(c)      Order that the second respondent pay the plaintiff’s
          costs of and incidental to this application to be
          assessed on the standard basis.

CATCHWORDS:

WORKERS COMPENSATION – application for indemnity – where employee employed in Qld but carried out work in NSW – whether combined operation of Qld and NSW acts precluded indemnity of employer – whether damages sought were within the meaning of Qld legislation – employer not entitled to indemnity

WORKERS COMPENSATION – application for declaration of estoppel – where applicant acted to his detriment on the basis of WorkCover’s actions – whether estoppel may override statute – whether law of NSW a “fact” – estoppel granted

Workcover Queensland Act (Qld) 1996

Workers’ Compensation Act (NSW) 1987

Bonser v Melnacis [2002] 1 QdR 1
Burrows v Workers Compensation Board of Queensland (Court of Appeal, Queensland, Appeal No. 6694/96, 12 June 1997)
The Commonwealth v Verwayen (1990) 170 CLR 394
John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503
Lindsay v Smith and the Nominal Defendant [2001] QCA 229
Newton & Bellamy & Wolfe v SGIO (Qld) [1986] QdR 431
Salisbury v Farley Constructions Pty Ltd [2000] QDC 051
Wilson v Austral Motors (Qld) Pty Ltd [1983] 2 QdR 774

COUNSEL:

Mr Given for the Applicant
Mr McDougall for the second Respondent
Mr Morris for the NSW insurer

SOLICITORS:

Gall Standfield & Smith for the Applicant
Hopgood Ganim Lawyers for the second Respondent

The Application

Mr Foster has sued his former employer and WorkCover Queensland, for damages. He brings this application against the employer and WorkCover Queensland. He asks for two declarations:

(a) A declaration that his former employer, Skilled Communication Services, is indemnified by WorkCover, against his claim for damages; or

(b) A declaration that WorkCover Queensland is estopped, in any event, from denying an obligation to indemnify Skilled Communication Services against Mr Foster’s claim for damages.

It was not suggested that it would be inappropriate to decide the application on the affidavits. There is no doubt about the essential facts. The deponents were not cross examined.
(The first respondent was called, but did not appear).

The Indemnity

Skilled Communication Services, in 1999, was in the business of installing communication cables. It carried out work in Queensland and in the other states. In early…

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.

Continue reading Foster v Skilled Communication Services P/L

Details

AGLC: Foster v Skilled Communication Services P/L [2002] QDC 213
Case: [2002] QDC 213
Decision Date: 26 July 2002

CaseChat Overview and Summary

The applicant, Foster, sought indemnity from his employer, Skilled Communication Services P/L, for damages he suffered while working in New South Wales. Foster was employed in Queensland but carried out work in New South Wales, and he argued that the employer should be held responsible for his injuries under the combined operation of the Queensland and New South Wales workers' compensation statutes. The employer, on the other hand, argued that the Queensland legislation precluded it from being liable for damages incurred in New South Wales. The matter was heard by the Queensland Court of Appeal.

The central legal issue in the case was whether the Queensland Workers' Compensation and Rehabilitation Act 2003 precluded the employer from being liable for damages incurred in New South Wales. The court had to determine whether the employer was entitled to indemnity under the combined operation of the Queensland and New South Wales workers' compensation statutes. Additionally, the court had to consider whether estoppel could override the statute and whether the law of New South Wales was a “fact.”

The court held that the employer was not entitled to indemnity because the Queensland legislation precluded it from being liable for damages incurred in New South Wales. The court found that the Queensland legislation was clear in its exclusion of claims arising outside of Queensland. However, the court granted estoppel in favour of the applicant, holding that the employer was estopped from asserting that it was not required to provide against its liability to the plaintiff according to the law of New South Wales. The court held that estoppel could override the statute in this case because the applicant had acted to his detriment on the basis of WorkCover’s actions.

The court ordered that the employer be estopped from asserting that it was not required to provide against its liability to the plaintiff, according to the law of New South Wales. The court also granted leave to the applicant to commence proceedings against the employer for the claim pursuant to s 305 of the WorkCover Queensland Act 1996. Finally, the court ordered that the second respondent pay the applicant’s costs of and incidental to this application to be assessed on the standard basis.

Orders

Orders of the court

(a) Declare that the respondents are estopped from asserting that the first respondent was required to provide against its liability to the plaintiff, according to the law of New South Wales.

(b) Order that leave be granted to the applicant to commence proceedings against the first respondent for the claim pursuant to s 305 of the WorkCover Queensland Act 1996.

costs of and incidental to this application to be

assessed on the standard basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Foster v Skilled Communication Services P/L [2002] QDC 213
PARTIES:	IAN CLYDE FOSTER Applicant v SKILLED COMMUNICATION SERVICES PTY LTD (ABN 067 943 873) First Respondent and WORKCOVER QUEENSLAND Second Respondent
FILE NO:	2766 OF 2002
PROCEEDING:	Application for declarations
DELIVERED ON:	26 July 2002
DELIVERED AT:	Brisbane
HEARING DATE:	18 July 2002
JUDGE:	Judge Brabazon Q.C.
ORDERS:	(a) Declare that the respondents are estopped from asserting that the first respondent was required to provide against its liability to the plaintiff, according to the law of New South Wales. (b) Order that leave be granted to the applicant to commence proceedings against the first respondent for the claim pursuant to s 305 of the WorkCover Queensland Act 1996. (c) Order that the second respondent pay the plaintiff’s costs of and incidental to this application to be assessed on the standard basis.
CATCHWORDS:	WORKERS COMPENSATION – application for indemnity – where employee employed in Qld but carried out work in NSW – whether combined operation of Qld and NSW acts precluded indemnity of employer – whether damages sought were within the meaning of Qld legislation – employer not entitled to indemnity WORKERS COMPENSATION – application for declaration of estoppel – where applicant acted to his detriment on the basis of WorkCover’s actions – whether estoppel may override statute – whether law of NSW a “fact” – estoppel granted Workcover Queensland Act (Qld) 1996 Workers’ Compensation Act (NSW) 1987 Bonser v Melnacis [2002] 1 QdR 1 Burrows v Workers Compensation Board of Queensland (Court of Appeal, Queensland, Appeal No. 6694/96, 12 June 1997) The Commonwealth v Verwayen (1990) 170 CLR 394 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 Lindsay v Smith and the Nominal Defendant [2001] QCA 229 Newton & Bellamy & Wolfe v SGIO (Qld) [1986] QdR 431 Salisbury v Farley Constructions Pty Ltd [2000] QDC 051 Wilson v Austral Motors (Qld) Pty Ltd [1983] 2 QdR 774
COUNSEL:	Mr Given for the Applicant Mr McDougall for the second Respondent Mr Morris for the NSW insurer
SOLICITORS:	Gall Standfield & Smith for the Applicant Hopgood Ganim Lawyers for the second Respondent