WorkCover Queensland v Turner Freeman

Case [2020] QCA 194

SUPREME COURT OF QUEENSLAND

CITATION:

WorkCover Queensland v Turner Freeman & Anor [2020] QCA 194

PARTIES:

WORKCOVER QUEENSLAND
(applicant)
v
TURNER FREEMAN (A FIRM)
ABN 27 395 824 213
(first respondent)
DOROTHY IRENE BOLT (EXECUTOR OF THE ESTATE OF THE LATE NOEL WILLIAM BOLT)
(second respondent)

FILE NO/S:

Appeal No 10657 of 2019
DC No 2515 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:


District Court at Brisbane – [2019] QDC 166 (Everson DCJ)

DELIVERED ON:

8 September 2020

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Morrison and McMurdo JJA and Williams J

ORDERS:

1.     Leave to appeal is granted.

2.     The appeal is dismissed with costs.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – FROM DISTRICT COURT – BY LEAVE OF COURT – where the applicant seeks leave pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) to appeal a decision of the District Court of Queensland – whether leave to appeal should be granted – whether it is in the interests of justice to do so

WORKERS’ COMPENSATION – ASSESSMENT AND AMOUNT OF COMPENSATION – SPECIAL PAYMENTS – REFUND OF PAYMENTS AND RECOVERY OF OVERPAYMENTS – where the second respondent’s husband (‘the deceased’) contracted an asbestos-related disease after working beside asbestos factories in Brisbane for many years – where the deceased commenced proceedings in the District Court of Queensland in early 2018 – where the deceased passed away in July 2018 – where the deceased’s asbestos-related disease significantly contributed to his death – where the second respondent, as executor of the deceased’s estate, negotiated a settlement of the deceased’s claim in November 2018 for $130,000 – where the second respondent applied to the applicant for compensation under s 201A of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCRA) – where the applicant paid a sum of $71,348.70 to the first respondent’s trust account as solicitors for the second respondent – where the applicant unsuccessfully sought repayment of the sum the District Court of Queensland on the basis of mistake or, alternatively, pursuant to s 207B of the WCRA – whether his Honour erred in the interpretation of s 119 of the WCRA – whether s 119 of the WCRA operates to extinguish the second respondent’s entitlement to compensation under s 201A of the WCRA – whether the applicant is entitled to be repaid pursuant to s 207B of the WCRA

Acts Interpretation Act 1954 (Qld), s 14A, s 14B, s 14C
Civil Proceedings Act 2011 (Qld), s 64
District Court of Queensland Act 1967 (Qld), s 68, s 118
Succession Act 1981 (Qld), s 66
Trusts Act 1973 (Qld), s 98
Workers’ Compensation Act 1916 – 1974 (Qld), Cl 24A
Workers’ Compensation Act 1990 (Qld), s 90
Workers’ Compensation Act 1926 - 1951 (NSW), s 6, s 8, s 63
Workers’ Compensation Act 1912 (WA), s 18
Workers’ Compensation and Rehabilitation Act 2003 (Qld),…

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AGLC
WorkCover Queensland v Turner Freeman [2020] QCA 194
Case
[2020] QCA 194
Decision Date

CaseChat Overview and Summary

WorkCover Queensland sought leave to appeal against a District Court decision to deny repayment of a compensation payment made to the estate of Mr Noel Bolt, who had died from an asbestos-related disease. Mrs Dorothy Bolt, the executor of Mr Bolt’s estate, had previously settled a personal injury claim against Amaca Pty Limited for $130,000 and subsequently applied for compensation under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) for the death of Mr Bolt. WorkCover paid $71,348.70 to Mrs Bolt’s legal representatives but later sought repayment on the basis of a mistake or pursuant to s 207B of the WCRA. The District Court dismissed WorkCover’s application, leading to this appeal.

The primary legal issues in the appeal were whether s 119 of the WCRA extinguished Mrs Bolt’s entitlement to compensation following the settlement of Mr Bolt’s claim and whether WorkCover was entitled to repayment of the compensation under s 207B of the WCRA. The District Court found that the compensation and the damages claim were distinct and that no double dipping had occurred. It also held that Mrs Bolt’s application for compensation was separate from the damages claim, and therefore s 119 did not extinguish her entitlement to compensation.

The Court of Appeal considered whether it was appropriate to grant leave to appeal. It noted that leave would usually be granted only if it was necessary to correct a substantial injustice and there was a reasonable argument that an error had been made. The Court concluded that it was arguable that the District Court had erred in its interpretation of s 119 of the WCRA. However, the Court found that the error, if any, did not amount to a substantial injustice warranting an appeal. Consequently, leave to appeal was granted but the appeal itself was dismissed with costs.

Leave to appeal is granted. The appeal is dismissed with costs.

Orders

Orders of the court

1. Leave to appeal is granted.

2. The appeal is dismissed with costs.

Background

Background to the litigation

The proposed notice of appeal is exhibit “LJCY-2” to the affidavit of Lysette Jade Cotching Yates sworn on 1 October 2019 and filed in support of WorkCover’s application.Factual background From 1959 to 1983, Mr Noel William Bolt (Mr Bolt) worked in close proximity to the James Hardie factories at Newstead. Mr Bolt claimed to have been exposed to and inhaled asbestos dust and fibre and contracted asbestos related disease including pleural disease, diffuse pleural thickening, rounded atelectasis and pleural plaques. On 8 January 2018 Mr Bolt commenced proceedings in the District Court of Queensland against Amaca Pty Limited (formally James Hardie and Co) (Amaca). Mr Bolt claimed $359,000.00 for damages for personal injuries caused by the negligence and/or breach of contract of Amaca. On 23 July 2018, Mr Bolt died. His asbestos related disease was found to have significantly contributed to his death.[12] Dorothy Irene Bolt (Mrs Bolt) was appointed as the executor of the estate of Mr Bolt.[13][12]See report of Dr Hossack dated 11 February 2019, exhibit BRT-9 of affidavit of Bruce Richard Thomas sworn 24 June 2019 [AB page 117].[13]See Will of William Bolt dated 2 August 2015, exhibit BRT-5 of affidavit of Bruce Richard Thomas sworn 24 June 2019 [AB page 100]. On 12 December 2018, Mr Bolt’s estate (with Mrs Bolt acting as personal representative) settled the claim against Amaca for $130,000.00. A deed of release was entered into in respect of the settlement. On 21 December 2018, Koppenol DCJ ordered that Mrs Bolt, as executor, be substituted for Mr Bolt as plaintiff. An amended statement of claim was filed in the District Court proceedings dated 13 December 2018 which substituted Mrs Bolt as legal representative of Mr Bolt as the plaintiff, and made some further amendments.[14][14]See AB page 149 to 158. The amendments to the statement of claim include paragraph 1(a) which states:“The Plaintiff is the executor of the estate of the late Noel William Bolt (hereinafter referred to as the Deceased). The Plaintiff brings this action for the benefit of the Deceased’s estate pursuant to section 66 of the Succession Act1981 (Qld).” The other substantive changes to the statement of claim were the inclusion in paragraph 6 under the heading “particulars of injuries and disabilities” at (q): “death”. Further, in paragraphs 7, 8, 10, 13 and 14, claims for future losses or expenses have been deleted. This is consistent with the limitations on recoverable damages under s 66 of the Succession Act 1981 (Qld).[15] There is no amendment to include any additional claims as a result of Mr Bolt’s death, or claims other than those which Mr Bolt could have himself brought during his lifetime.[16][15]Sections 66(2)-(2A) of the Succession Act 1981 (Qld).[16]See affidavit of Jacqueline Ann Hughes sworn 28 August 2019 at paragraph 3 [AB page 160]. On 4 January 2019, Mrs Bolt made an application to WorkCover for “compensation ‒ fatal injury”.[17] This was an application pursuant to s 201A of the WCRA which provides for compensation on a worker’s death where the worker is survived by a spouse, issue or next of kin who are non-dependent.[17]See exhibit AG-1 of affidavit of Amara Grenier sworn 29 August 2019 [AB page 244].

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

As outlined above, the applicant agrees to a condition that the applicant pay the respondent’s costs in any event. Accordingly, the issue to be determined is whether it is appropriate to otherwise grant leave to appeal.Decision at first instance The reasons of his Honour Judge Everson set out the background facts in paragraph 1 to 5. In paragraphs 6, 7 and 8, his Honour outlines s 119 of the WCRA and briefly summarises the positions of the applicant and the respondent. In respect of the applicant’s submissions, his Honour stated at [7]:“In this regard it is submitted that any entitlement to compensation ended upon settlement of the action for damages. This occurred on 10 January 2019 before the payment the subject of this proceeding was made. In support of this submission my attention is drawn to the wide definition of ‘injury’ in s 32 of the WCRA and the fact that in s 119(1) the curtailing of the entitlement to compensation applies in circumstances where ‘for an injury’ there is both such an entitlement and an entitlement to recover damages. Accordingly, it is submitted, it is the same injury which gives rise to both the entitlement to compensation and the entitlement to recover damages. It is therefore the injury which dictates the ambit of the provision according to the applicant.” In respect of the respondents’ position, his Honour stated at [8]:“Conversely, the respondents argue that there needs to be a link between an entitlement to compensation and an entitlement to recover damages for the entitlement to compensation to end. It is further submitted that the application made by Mrs Bolt on 4 January 2019 was completely separate to an entitlement to compensation within the contemplation of s 119 in circumstances where it is uncontroversial that the action for damages did not include a claim for funeral expenses or a claim for loss of dependency (which is an entitlement to recover damages in similar terms to what is contemplated by the compensation payable pursuant to s 201A of the WCRA).” His Honour’s reasons and conclusion are set out at [9] to [11] which state as follows:“[9] At the heart of this application, the applicant submits that the issue is whether the second respondent is entitled to ‘double dip’ and recover both common law damages and statutory compensation in respect of the same injuries. The issue for determination is not that simple however. As the respondents asserted, the compensation paid pursuant to the WCRA was payable upon the death of Mr Bolt whereas the claim for damages was brought for personal injuries sustained by him. It was merely continued by Mrs Bolt pursuant to s 66 of the Succession Act. I have not been taken to any authorities concerning the interpretation of s 119 of the WCRA, however the decision of the Full Court in State Government Insurance Office (Queensland) v Public Curator of Queensland [1976] Qd R 281 is authority for the proposition that such a provision envisages a claim for damages independently of the Act in question, in respect of which the compensation is payable. That is not what has occurred on the facts before me as the subject matter of the compensation paid by the applicant, namely funeral expenses and a payment of compensation to the estate of a deceased worker, were not the subject of the claim for damages and were not canvassed in the deed whereby it was settled. In these circumstances the question of a ‘double dip’ does not arise. Moreover, it needs to be emphasised that the capacity in which Mrs Bolt received the compensation pursuant to the WCRA was different to the capacity in which she continued the action for damages on behalf of her late husband. This concept is explained in Foyster v The Minister for Education (unreported, Supreme Court of Western Australia, 8 March 1985).[10]It is clear that s 119 contemplates an entitlement to compensation which is the subject of a settlement for damages or a judgment for damages. That is not the case with the compensation paid pursuant the WCRA and the claim for damages on the facts before me.[11]I therefore dismiss the application and will hear the parties on costs.”Proposed notice of appeal

Ratio Decidendi

Legal Principle Established

On 1 October 2019, the application to the Court of Appeal was filed together with an affidavit of Ms Yates which attaches a copy of the proposed notice of appeal.[29][29]See AB page 1 to 8.First issue for consideration - Leave to appeal The threshold issue for consideration is whether WorkCover should be given leave to appeal. This requires some consideration of the issues raised in the proposed notice of appeal, which can be summarised as follows:(a)whether s 119 of the WCRA operates to extinguish Mrs Bolt’s entitlement to statutory compensation following settlement of Mr Bolt’s claim in the District Court proceedings; and/or(b)whether WorkCover is entitled to be paid the amount of Mrs Bolt’s statutory compensation under s 207B of the WCRA by way of a charge on the damages paid pursuant to the settlement. Section 118 of the District Court of Queensland Act 1967 (Qld) states as follows:“118 Appeal to the Court of Appeal in certain cases…(2)A party who is dissatisfied with a final or interlocutory judgment of the District Court in its original jurisdiction may appeal to the Court of Appeal if the judgment—(a) is given for an amount equal to or more than the Magistrates Courts jurisdictional limit; or (b) relates to a claim for, or relating to, property that has a value equal to or more than the Magistrates Courts jurisdictional limit. (3)Subject to sections 118A and 118B, a party who is dissatisfied with any other judgment of the District Court, whether in the court’s original or appellate jurisdiction, may appeal to the Court of Appeal with the leave of that court.(4)In deciding whether there is a right of appeal under this section, the Court of Appeal may—(a) inform itself in any way it considers appropriate, including by reference to the appeal record; and(b) decide the question summarily without hearing evidence.(5)If it is reasonably arguable that a right of appeal under this section exists, the Court of Appeal may treat that circumstance as a ground for granting leave to appeal.(6)If the Court of Appeal grants leave under subsection (3), it may grant it on the conditions it considers appropriate.…(8)An appeal from the District Court in its original jurisdiction is by way of rehearing.” It is also agreed between the parties that should leave be granted it is appropriate to include the condition that WorkCover pay the respondents’ costs in any event. This has been expressly agreed by WorkCover in its submissions.[30][30]See paragraph 4 of submissions on behalf of the applicant (for hearing on the papers) dated 1 April 2020. The amount in issue is $71,348.70, which is below the Magistrates Court jurisdictional limit[31] and leave to appeal is required.[31]Pursuant to ss 2 and 4 of the Magistrates Courts Act 1920 (Qld) the Magistrates Court jurisdictional limit is for claims up to $150,000. The relevant principle in respect to leave to appeal is the statement of Keane JA (as his Honour then was) in Pickering v McArthur[32] at [3] (with McMurdo P and Dutney J agreeing):“Leave [under s 118(3)] will usually be granted only where an appeal is necessary to correct a substantial injustice to the applicant, and there is a reasonable argument that there is an error to be corrected.” (emphasis added)[32][2005] QCA 294.