Hatzileontiadis v Johns Lyng Group Pty Ltd
[2010] VCC 573
•27 May 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES – COMPENSATION
GENERAL DIVISION
Case No. CI-08-03694
| MICHEL HATZILEONTIADIS | Plaintiff |
| v | |
| JOHNS LYNG GROUP PTY LTD | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 17 March 2010 |
| DATE OF JUDGMENT: | 27 May 2010 |
| CASE MAY BE CITED AS: | Hatzileontiadis v Johns Lyng Group Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0573 |
REASONS FOR JUDGMENT
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Catchwords: Repayment of statutory benefits – Accident Compensation Act (1985), section 114F – plaintiff not a worker – Wrongs Act claim – counterclaim – application for summary judgment.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I Fehring | Patrick Cash & Associates |
| For the Defendant | Mr J Foster | Andrew Bell Lawyer Pty Ltd |
| HER HONOUR: |
1 On or about 8 September 2005, the plaintiff suffered injuries in an accident whilst carrying out painting work for the defendant at the Buckingham Hotel, Footscray, premises occupied by the defendant.
2 The plaintiff alleges he is entitled to damages in relation to a breach by the defendant of a duty of care arising under section 14B of the Wrongs Act (1958).
3 In its Defence filed on 30 October 2008, the defendant denied the plaintiff’s claim on the basis he was a worker and had not satisfied the provisions of the Accident Compensation Act 1985 (“the Act”), in that he had not obtained leave to bring proceedings. The defendant also alleged contributory negligence on the part of the plaintiff.
4 This is an application for summary judgment on a counterclaim brought by the defendant where it seeks repayment by the plaintiff of weekly payments incorrectly paid to him by the defendant’s insurer, QBE.
Agreed Facts in Relation to the Statutory Benefits Claim
5 On or about 10 October 2005, the plaintiff submitted a Claim for Compensation under the Act asserting he was a worker, that he was injured in the course of his employment and he was entitled to benefits under the Act.
6 The claim was rejected by QBE, an authorised agent of the Victorian WorkCover Authority (“the Authority”) by letter dated 25 October 2005.
7 Pursuant to a Conciliation Certificate issued on 24 January 2006, QBE accepted the plaintiff’s claim and payments were made in accordance with law.
8 The plaintiff was paid compensation pursuant to this claim between 10 October 2005 and 13 October 2006 and he has received the benefit of payments pursuant to the Act in the sum of $61,970 (“the weekly payments”).
9 Further, QBE paid $517.00 to the plaintiff by way of reimbursement for medical and like expenses pursuant to section 125A of the Act on 30 June 2006 (“the medical expenses”).
10 By letter dated 13 October 2006, QBE sent a notice to the plaintiff terminating his entitlement to compensation on the basis that he was not a “worker” within the meaning of the Act.
11 A Request for Conciliation issued by the plaintiff on 17 October 2006 set out:
“I am incapacitated for employment due to an injury which was
significantly contributed to by that employment.”
12 The plaintiff disputed this decision by referring it to the Accident Compensation Conciliation Services (“ACCS”), asserting he was incapacitated for employment due to an injury which was significantly contributed to by employment.
13 The ACCS issued a Certificate of Genuine Dispute pursuant to section 59(4) of the Act on 14 December 2006.
14 Further, on or about 3 October 2006, the plaintiff submitted a Worker’s Claim for Impairment Benefits, setting out that he was injured on 8 September 2005 whilst a worker employed by the defendant in the course of his employment, and that he was entitled to benefits under the Act.
15 By letter dated 5 December 2006, QBE notified the plaintiff that the Impairment Benefits Claim had been rejected.
16 On 19 March 2007, the plaintiff issued a notice entitled “Request for Conciliation” pursuant to section 59 of the Act, which Notice asserted that:
“I am entitled to compensation for my injuries which are significantly
contributed to by my employment.”
17 A conciliation conference was set down for 15 May 2007. On 23 April 2007, prior to that conference, a Conciliation Outcome Certificate was issued which provided that application may be made to the County Court or Magistrates’ Court to determine the matter.
18 The plaintiff has made no application to the County Court or the Magistrates’ Court to determine the matters the subject of the two conciliation conferences.
19 On the basis of the assertions by the plaintiff contained in:
(a) the WorkCover Claim issued on 10 October 2005; (b) the Request for Conciliation dated 17 October 2006; (c) the Worker’s Claim for Impairment Benefits issued on 3 October 2006; and (d) the Request for Conciliation dated 19 March 2007, the plaintiff has always alleged he is a “worker” who is entitled to compensation in respect of an injury arising out of or in the course of or due to the nature of employment.
20 By Summons dated 14 April 2009, the defendant sought orders that the plaintiff’s Wrongs Act proceeding be dismissed by reason of the plaintiff’s failure to comply with section 134AB of the Act.
21 By Counterclaim dated 24 June 2009 brought in relation to the plaintiff’s proceedings pursuant to the Wrongs Act (1958), the defendant seeks recovery from the plaintiff of the weekly payments, together with the medical expenses.
22 By its Defence to the Counterclaim dated 21 July 2007, the plaintiff alleges that section 114F of the Act applies in relation to the recovery of moneys paid under the Act, that there was no unjust enrichment by the plaintiff and that the plaintiff is entitled to damages from the defendant and has commenced Wrongs Act proceedings in that regard.
23 In his affidavit sworn 19 October 2009, the plaintiff deposed that for the reasons set out in the defendant’s affidavit material and various documents relating to his claim for compensation, he was not a “worker”.
24 Accordingly, the defendant no longer persists with the summons seeking dismissal of the Wrongs Act proceedings on the basis the plaintiff requires leave to bring proceedings.
25 However, the defendant issued a further Summons on 7 October 2009 seeking an order that the defendant be given summary judgment on the Counterclaim for the sum of $62,487.00 (being the weekly payments and medical expenses) pursuant to Rule 22.08 and Rule 22.06(1)(b) of the County Court Civil Procedure Rules 2008 (“the Rules”).
26 The plaintiff’s receipt of these payments is admitted.
The Defendant’s Submissions
27 Counsel for the defendant provided detailed written submissions in support of the application for summary judgment.
28 It was submitted that section 114F of the Act does not preclude the defendant (as the party who made the payments to the plaintiff) from seeking recovery of the amounts mistakenly or improperly paid to the plaintiff by reason of the common law rights to restitution.
29 Reliance was placed on the New South Wales decision in Carricks Ltd v Pizzaro (1995) 38 NSWLR 274. In that case, monies were overpaid in purported compliance with an award under the Workers Compensation Act (1987) NSW (“the NSW Act”).
30 Section 58(1) of the NSW Act provides:
“(1) If, because of a worker's return to employment or a change in
employment that affects the worker's earnings:
(a)
the worker is not entitled under this Act to any weekly payments of compensation that have been paid to the worker; or
(b)
the amount of any weekly payments of compensation that have been paid to the worker exceed the amount to which the worker is entitled under this Act,
the Compensation Court may order the worker to refund to the person who made the payments any amount to which the worker is not entitled in respect of payments during any period not exceeding 2 years (or such shorter or longer period as the Court considers to be appropriate) from the date of payment.”
31 Section 107 of the NSW Act provides:
“Subject to this Act and the Compensation Court Act 1984 the Compensation Court has the exclusive jurisdiction to examine, hear and determine all matters arising under this Act (except Part 5).”
32 The Court of Appeal held that the fact section 58 of the NSW Act defined circumstances in which a Compensation Court may address an overpayment of compensation, does not deprive a party who has overpaid money in other circumstances to recover such sums in a court of competent jurisdiction.
33 In the present case, the defendant seeks restitution from the plaintiff on the basis of the principle of unjust enrichment, namely that the plaintiff has been enriched at the expense of the defendant in circumstances where it would be unjust for the plaintiff to retain the benefit of the payments.
34 Further, it was submitted that the fact the defendant cannot identify any loss or expense by reason of the fact the sums had been funded by QBE, was no defence to the claim of unjust enrichment.
35 In this regard, counsel for the defendant relied upon the decision in Kleinwort Benson Ltd v Birmingham City Council [1996] 4 All ER 733, at 738, per Evans LJ, and the decision of Mason CJ in Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1994) 126 ALR 1.
36 In the latter case, Mason CJ quoted with approval what Windeyer J said in Mason v State of New South Wales (1959) 102 CLR 108, at 145.
"If the defendant be improperly enriched on what legal principle can it claim to retain its ill-gotten gains merely because the plaintiffs have not, it is said, been correspondingly impoverished? The concept of impoverishment as a correlative of enrichment may have some place in some fields of continental law. It is foreign to our law. Even if there were any equity in favour of third parties attaching to the fruits of any judgment the plaintiffs might recover ... this circumstance would be quite irrelevant to the present proceedings. Certainly it would not enable the defendant to refuse to return moneys which it was not in law entitled to collect and which ex hypothesi it got by extortion."
37 Further, it was submitted that even if the defendant was required to show particular impoverishment, then it could point to extra premiums that it had been required to pay to QBE over the past three financial years owing to the plaintiff’s claim for compensation.
38 QBE has advised the defendant by letter dated 16 March 2010 that the defendant’s premium had increased by $27,108.88 because of the plaintiff’s claim.
39 It was submitted by counsel for the defendant that the plaintiff’s contention that the payments made pursuant to the Act would be refunded either by the plaintiff or the defendant upon finalisation of litigation was erroneous as the defendant disputed the plaintiff’s claim on both liability and quantum. It was wrong to infer the plaintiff still had a present entitlement to the sum and that he would obtain an order from the Court for the payment of that sum from the defendant.
40 It was submitted that the defendant ought not be kept out of the funds whilst the Wrongs Act proceeding was litigated and that the defendant had a present common law entitlement to the repayment of the sum of money.
41 It was submitted that that sum ought to be paid immediately by the plaintiff to the defendant, who could then pay such money back to QBE after issues concerning the extra premium were dealt with.
42 It was submitted that once that sequence of events took place, QBE would presumably be estopped in equity from taking further action to recover any sum from the plaintiff pursuant to section 114F of the Act by reason of the fact that QBE would have already been fully compensated.
43 By letter dated 23 December 2009, QBE wrote to the plaintiff seeking recovery of $67,920 pursuant to section 114F of the Act. The plaintiff has not complied with this request.
The Plaintiff’s Submissions
44 It was not disputed that the payments had been made to the plaintiff by QBE through the defendant as agent for the Authority, and that such payments were in accordance with law and not the subject of any fraud or illegality.
45 The plaintiff, who is not a “worker” under the Act, has to repay the sums received pursuant to the Act.
46 It was submitted by counsel for the plaintiff that a summary judgment application on the counterclaim was an inappropriate vehicle to recover payments of compensation incorrectly paid to the plaintiff.
47 Section 114F of the Act set out the recovery procedure available to the Authority or self insurer and did not provide the defendant, who is neither the Authority or a self insurer with a remedy.
48 Section 114F (1) of the Act provides:
“The Authority or a self insurer may recover from a worker, an employer or any other person any payment of compensation or other amount to which the worker, employer or other person is not entitled.”
49 It was submitted it was premature, at this stage, with the principal proceedings pursuant to the Wrongs Act still on foot, to compel the plaintiff to repay the payments made under the Act.
50 It was submitted that the affidavit material in support of the summary judgment application was insufficient and on that basis alone the application should be struck out. In the alternative, it was submitted that the appropriate test in relation to summary judgment had not been satisfied.
Overview
51 This application for summary judgment is brought pursuant to Order 22.08 (1) of the Rules which provides:
“… where a defendant serves a counterclaim the defendant may at any time after service, on the ground that the plaintiff has no defence to the whole or part of a claim made in a counterclaim, or no defence except as to the amount of a claim, apply to the court for judgment against the plaintiff.”
52 The principles which govern an application for summary judgment are well established. The classic statement of the High Court in this regard is set out in Fancourt v Mercantile Credits Pty Ltd (1983) 154 CLR 87, at 99, that:
“… the power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real issue to be tried. …”
53 See also Ticco Pty Ltd v Complete Family Healthcare Services Pty Ltd [2005] VSCA 221, at para 20.
54 In the present case, there are real issues to be tried.
55 Notwithstanding what was said in the New South Wales case of Carricks Ltd v Pizzaro, there is an arguable case that section 114F of the Act covers the field in terms of recovery of payments made under the Act.
56 There is the need for coherence and where statute sets out the mechanism for recovery, a Court should, at least, on a summary judgment application, be slow to find a collateral cause of action – see, for example, Scott v Bowyer [1998] 1 VR 207 regarding the Workers Compensation Act, and generally CAL
No 14 Pty Ltd v Motor Accidents Insurance Board; Cal No 14 Pty Ltd v Scott
(2009) 239 CLR 390.
57 Moreover, the plaintiff may be at risk of two actions: one by the Authority; and the other by the defendant involving the same sum. Recovery pursuant to section 114F has in fact been sought by QBE by letter dated 23 December 2009 to the plaintiff’s solicitors.
58 Further, the unjust enrichment point raises a number of other issues.
59 To what extent, if at all, can the defendant, the non payer of the funds have a right to recovery given the payer’s right under section 114F? As unjust enrichment is a restitutionary remedy, it is arguable that it is not available to the defendant as the plaintiff has not been enriched at the expense of the defendant, as QBE, not the defendant, has made the payments to the plaintiff.
60 Insofar as any loss is claimed by the defendant in terms of the increased premium, it is not unjust enrichment that is restitutionary. Further, it is a matter that can only be considered once all the facts are known, including whether the Authority adjusts the premium if the payments are repaid pursuant to section 114F of the Act.
61 The plaintiff is claiming the weekly payments and medical expenses as part of his special damages in the Wrongs Act claim and he is not entitled to “double dip”. His solicitors wrote to QBE on 29 January 2010 advising that the payments sought from the plaintiff in this counterclaim will be part of the special damages in the plaintiff’s Wrongs Act claim and will be refunded to the defendant on the finalisation of that claim.
62 As there are real issues to be tried, I am not prepared to grant the defendant’s application for summary judgment.
63 The summons is dismissed.
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