Workers' Compensation Nominal Defendant v Victorian WorkCover Authority - [2025] NSWSC 1079

Supreme Court

New South Wales

Medium Neutral Citation: Workers’ Compensation Nominal Defendant v Victorian WorkCover Authority [2025] NSWSC 1079
Hearing dates: 15 – 18 July 2024
Date of orders: 22 September 2025
Decision date: 22 September 2025
Jurisdiction: Common Law
Before: Campbell J
Decision:
See [78]

Catchwords:
WORKERS COMPENSATION – Liability – employment connected with a state – state in which the worker is usually based and works – whether payments were caused by mistake or made voluntarily – where inaccurate information gathered by claim investigators – where usual efforts of an insurer to inform itself of the true facts before accepting liability were made – held – payments made by mistake
WORKERS’ COMPENSATION – Double compensation – compensation received in other law area – statutory choice of law rule – mechanism of recovery of payments – where restitution retains the character of compensation originally paid – held – cross defendant prevented from retaining benefit of cross claimant’s mistake to the extent to which it was relieved of liability

Legislation Cited:
Workers Compensation Act 1967 (NSW) ss 9AA, 9AC, 20, 151Z
Workplace Injury Management and Workers’ Compensation Act 1988 (NSW) s 78
Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) ss 37, 48, 369

Cases Cited:
Commissioner for Railways (Qld) v Peters (1991) 24 NSWLR 407
David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; [1992] HCA 48
Franklins Self Service Pty Ltd v Wyber (1999) 48 NSWLR 249; [1999] NSWCA 390
Tam v Super Seasons Pty Ltd [2022] NSWSC 1366
Jones v Dunkel (1959) 101 CLR 298
Tam v Super Seasons Pty Ltd [2024] NSWSC 873
Tam v Super Seasons Pty Ltd (No 2) [2023] NSWSC 460
Tam v Super Seasons unreported 30 January 2023
Tam v Work Safe Victoria [2023] NSWSC 173
Tran v Vo [2017] NSWCA 134
WorkCover Authority of NSW v Billpat Holdings Pty Ltd (1995) 11 NSWCCR 565

Category: Principal judgment
Parties: Workers Compensation Nominal Insurer (Cross Claimant)
Victorian WorkCover Authority (First Cross Defendant)
Ching Tam (Second Cross Defendant) (given leave to withdraw from the proceedings on 16 July 2024)
Representation:
Counsel:
A Ahmad (Cross Claimant)
S Smith KC with I Griscti (First Cross Defendant)
R Sheldon SC with A Parker (Second Cross Defendant) (given leave to withdraw from the proceedings on 16 July 2024)
Solicitors:
Hicksons Lawyers (Cross Claimant)
Lander & Rogers (First Cross Defendant)
Acer Law (Second Cross Defendant) (given leave to withdraw from the proceedings on 16 July 2024)

File Number(s): 2020/56877
Publication restriction: Nil.

JUDGMENT

This judgment is concerned with the disposition of the third cross claim in these proceedings. These proceedings commenced as a claim for damages for catastrophic personal injuries suffered by Mr Tam, the second cross defendant, in the course of his employment by Mr Handy Professor Pty Ltd (MHP) on 13 July 2017 at an orchard at Hillston, NSW, which was conducted by the former first defendant, Super Seasons Pty Ltd (Super Seasons). The nature of 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: [2025] NSWSC 1079
Decision Date: 22 September 2025

CaseChat Overview and Summary

The case involved a dispute between the Workers' Compensation Nominal Defendant and the Victorian WorkCover Authority. The central issue was whether payments made by the Nominal Defendant were due to a mistake or were voluntarily undertaken. The dispute also touched on whether the Authority could reclaim payments made in error, and if it was permissible to recover double compensation where the worker had received compensation in another area of law.

The court needed to determine the circumstances under which payments could be considered mistakes and if the insurer's efforts to verify facts before accepting liability were sufficient. Additionally, the court had to assess whether the Authority could reclaim payments made in error and if it could retain the benefit of the worker's mistake to the extent that it was relieved of liability.

The court found that the payments made by the Nominal Defendant were indeed mistakes, as they were based on inaccurate information gathered by claim investigators. Despite the insurer's efforts to inform itself of the true facts, the payments were made in error. The court also ruled that the Authority was not prevented from reclaiming payments made in error, and it could not retain the benefit of the worker's mistake to the extent that it was relieved of liability. The mechanism of recovery of payments retained the character of compensation originally paid.

The court ordered the Workers' Compensation Nominal Defendant to repay the Victorian WorkCover Authority for the payments made in error, ensuring that the Authority was not prejudiced by the mistake. The Authority was also allowed to reclaim the payments to the extent they were due to the worker's mistake, but it could not benefit from the mistake to the extent that it was relieved of its own liability.

Orders