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

1. 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 injury suffered by Mr Tam is a spinal cord injury resulting in tetraplegia when he fell from a long ladder while picking tangelos.

2. MHP was a small labour hire company providing agricultural workers to work as fruit pickers. Mr Tam received his injury on his first day of work at Super Seasons’ orchard, early in his shift and possibly even before he had undergone the induction process for work at the orchard.

3. For complex legal reasons, mainly related to choice of law issues, which need not be discussed in detail at this stage, Mr Tam’s claim for damages followed a tortuous course in this Court. A number of these issues have been addressed in a series of decisions by various judges of the Common Law Division: Tam v Super Seasons Pty Ltd [2022] NSWSC 1366 (per Garling J); Tam v Super Seasons unreported 30 January 2023 (per McNaughton J); Tam v Work Safe Victoria [2023] NSWSC 173 (per Fagan J); Tam v Super Seasons Pty Ltd (No 2) [2023] NSWSC 460 (per Garling J); and Tam v Super Seasons Pty Ltd [2024] NSWSC 873 (per Campbell J).

4. The matter came on for hearing before me on 15 July 2024. Mr Tam was suing Super Seasons as the first defendant, the Victorian WorkCover Authority (VWA) as the second defendant; and Workers’ Compensation Nominal Insurer as the third defendant. With the exception of the third cross-claim, to which I have referred, the proceedings resolved by an order granting leave to the plaintiff to file a Notice of Discontinuance against each defendant with no order as to costs and the dismissal of each of the first and second cross claims, likewise with order as to costs.

The third cross claim

5. The third cross claim is brought by the third defendant, the Workers’ Compensation Nominal Insurer, Insurance and Care NSW (icare) against VWA as first cross-defendant and Mr Tam as second cross-defendant. As I explained in my previous judgment, essentially icare is seeking restitution of sums paid to, for or on behalf of Mr Tam purportedly under the provisions of the Workers’ Compensation Act 1987 (NSW) (WCA) up until 6 August 2022, on various grounds.

6. As against Mr Tam, icare, in the alternative to its claims for relief against VWA, seeks orders by way of mandatory injunction that Mr Tam claim compensation from VWA by way of weekly payments, medical and hospital expenses and permanent impairment compensation of the same type as he received from icare during the period of 13 July 2017 and 6 August 2022, and to account to it for the proceeds.

7. It has been made quite clear by icare that it does not seek restitution per se of the amounts paid to, for, or on behalf of Mr Tam from Mr Tam personally. Upon the proffering of this undertaking to the Court, Mr Sheldon SC, who appeared for Mr Tam was given leave to withdraw from the proceedings.

Legal context of the remaining dispute

8. The legal context of the remaining dispute is the statutory choice of law rule which is a condition to the entitlement of an injured worker to statutory benefits under the respective workers’ compensation laws in NSW, Victoria and in other law areas throughout the Commonwealth of Australia.

9. In NSW, the choice of law rule is established by s 9AA WCA. The section is in the following terms:

“9AA Liability for compensation

(1) Compensation under this Act is only payable in respect of employment that is connected with this State.

(2)  The fact that a worker is outside this State when the injury happens does not prevent compensation being payable under this Act in respect of employment that is connected with this State.

(3)  A worker’s employment is connected with—

(a)  the State in which the worker usually works in that employment, or

(b)  if no State or no one State is identified by paragraph (a), the State in which the worker is usually based for the purposes of that employment, or

(c)  if no State or no one State is identified by paragraph (a) or (b), the State in which the employer’s principal place of business in Australia is located.

(4)  In the case of a worker working on a ship, if no State or no one State is identified by subsection (3), a worker’s employment is, while working on a ship, connected with the State in which the ship is registered or (if the ship is registered in more than one State) the State in which the ship most recently became registered.

(5)  If no State is identified by subsection (3) or (if applicable) (4), a worker’s employment is connected with this State if—

(a)  the worker is in this State when the injury happens, and

(b)  there is no place outside Australia under the legislation of which the worker may be entitled to compensation for the same matter.

(6)  In deciding whether a worker usually works in a State, regard must be had to the worker’s work history with the employer and the intention of the worker and employer. However, regard must not be had to any temporary arrangement under which the worker works in a State for a period of not longer than 6 months.

(7)  Compensation under this Act does not apply in respect of the employment of a worker on a ship if the Seafarers Rehabilitation and Compensation Act 1992 of the Commonwealth applies to the worker’s employment.

(8)  In this section—

ship means any kind of vessel used in navigation by water, however propelled or moved, and includes—

(a)  a barge, lighter, or other floating vessel, and

(b)  an air-cushion vehicle, or other similar craft,

used wholly or primarily in navigation by water.”

10. As can be seen, the central concept is one of “employment that is connected with this State”: WCA s 9AA, subs (1), (2) and (5). This concept is explained and expanded on by the succeeding subsections.

11. In Victoria, the cognate provision is s 37 Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (WIRCA), which is in the following terms:

“37 Entitlement to compensation only if employment connected with Victoria

(1) There is no entitlement to compensation under this Act other than in respect of employment that is connected with this State.

(2) The fact that a worker is outside this State when the injury happens does not prevent an entitlement to compensation arising under this Act in respect of employment that is connected with this State.

(3) A worker's employment is connected with—

(a) the State in which the worker usually works in that employment; or

(b) if no State or no one State is identified under paragraph (a), the State in which the worker is usually based for the purposes of that employment; or

(c) if no State or no one State is identified under paragraph (a) or (b), the State in which the employer's principal place of business in Australia is located

(4) In the case of a worker working on a ship, if no State or no one State is identified under subsection (3), the worker's employment is, while working on a ship, connected with the State in which the ship is registered or (if the ship is registered in more than one State) the State in which the ship most recently became registered.

(5) If no State is identified under subsection (3) or, if applicable, subsection (4), a worker's employment is connected with this State if—

(a) the worker is in this State when the injury happens; and

(b) there is no place outside Australia under the legislation of which the worker may be entitled to compensation for the same matter.

(6) In deciding whether a worker usually works in a State, regard must be had to the worker's work history with the employer over the preceding 12 months and the intentions of the worker and employer. However, regard must not be had to any temporary arrangement under which the worker works in a State for a period of not longer than 6 months.

(7) Subject to subsection (6), in determining whether a worker usually works in a State or is usually based in a State for the purposes of employment, regard must be had to any period during which a worker works in a State or is in a State for the purposes of employment whether or not under the statutory workers compensation scheme of that State the person is regarded as a worker or as working or employed in that State. Authorised by the Chief Parliamentary Counsel 59 Part 2—Workplace injuries Workplace Injury Rehabilitation and Compensation Act 2013 No. 67 of 2013.

(8) Compensation under this Act does not apply in respect of the employment of a worker on a ship if the Seafarers Rehabilitation and Compensation Act 1992 of the Commonwealth applies to the worker's employment. (9) In this section— ship means any kind of vessel used in navigation by water, however propelled or moved, and includes—

(a) a barge, lighter, or other floating vessel; and

(b) an air-cushion vehicle, or other similar craft— used wholly or primarily in navigation by water;

State includes—

(a) Territory; and

(b) the offshore area, within the meaning of the Offshore Petroleum and Greenhouse Gas Storage Act 2006 of the Commonwealth, of the relevant State or Territory.

12. While the language in which each of the above provisions are couched are not identical, it is materially the same and of identical legal effect. There is no issue between the parties about this.

13. When Mr Tam received his catastrophic injury on 13 July 2017, the only question about his entitlement to compensation was, with which of NSW or Victoria was his employment with MHP connected? As is obvious from both the NSW and Victorian provisions, except in a case to which either s 9AA(5) WCA or s 37(5) WIRCA applies, the fact that the injury happened within the given law area is not, of itself, a sufficient connection with that law area to attract the operation of its workers compensation legislation.

14. The enactment of these statutory choice of law rules materially changed the previous general law approach: cf Mynott v Barnard (1939) 62 CLR 68; [1939] HCA 13; WorkCover Authority of NSW v Billpat Holdings Pty Ltd (1995) 11 NSWCCR 565; Commissioner for Railways (Qld) v Peters (1991) 24 NSWLR 407. A legal effect of these provisions, considered separately, is that where a worker who received an injury in the course of his or her employment regardless of where the injury occurred, subject perhaps to s 9AA(6) WCA and s 37(6) WIRCA, the legislation of one law area only would be apt to respond to the injury to provide an entitlement to compensation.

15. It is also no longer in dispute that Victoria is the State with which Mr Tam’s employment was connected, and not NSW. It is not legally possible for there to have been a shift in the place of relevant connection mid-claim, as it were. Inferentially, it must follow that Victoria always was, at all times material to Mr Tam’s claim, the relevant State with which Mr Tam’s employment was connected.

16. Rather, what remains in dispute is whether there is any legal mechanism for icare to directly recover from VWA the compensation paid to, for, or on behalf of Mr Tam by it to which he was not entitled because his employment was not one connected with NSW.

17. Mr A Ahmad of counsel, who appeared for icare, by way of summary in his closing written submissions identified three possible avenues for recovery:

1. “First, the combined application of WIRCA to the circumstances of this case with the common law rule against double compensation.

2. Second, a restitutionary remedy of recoupment from the VWA, as a consequence of having relieved the VWA of an obligation to make payments under WCA (sic).

3. Third, an equitable remedy of subrogation.” (Original delineation)

I take the reference to WCA in the second point as being a reference to WIRCA.

18. I observe that Mr Ahmad’s opening written submissions of 11 July 2024 put the matter more broadly and with greater elaboration. I did not understand him to be confining the avenues of attack. In particular, I did not understand icare to be abandoning any right to restitution on the basis of money had and received as a means of recovery of money paid by mistake.

19. While admitting that it was at all times bound to indemnify MHP for compensation and damages in accordance with the provisions of WIRCA, VWA disputes icare’s claim. In particular, it denies icare acted under a mistake. Rather, it says it was aware of all the relevant material facts and circumstances and made its decision to pay compensation to, for, or on behalf of Mr Tam, not under any mistake, but voluntarily. It denies that the elements of recoupment or subrogation are made out, and raises a defence of change of position, in as much as it says it has forgone its statutory right of indemnity against a third-party tortfeasor, presumably Super Seasons, under s 369 WIRCA. It also raises s 48 WIRCA as a legal bar to recovery by icare.

Additional legal considerations

20. I think it well to have two matters of law, one statutory and the other under the general law, firmly in mind at the outset.

21. First, the statutory matter relates to the provisions of s 9AC WCA and s 48 WIRCA. While, as a general proposition, as I have said, the expectation that proceeds from the statutory choice of law rule is that only one State workers’ compensation law within the Commonwealth will respond to a given injury to a specific worker, the legislation itself contemplates the possibility that compensation may be paid more than once “in respect of any matter” and makes provision for the avoidance of double compensation of the injured worker. Once again, the language of the relevant provision and the respective State legislation is not identical, but it is to the same legal effect.

22. Section 9AC WCA provides as follows:

“9AC Person not to be compensated twice

(1)  Compensation under this Act is not payable in respect of any matter to the extent that compensation has been received under the laws of a place other than this State.

(2)  If a person receives compensation under this Act and, for the same matter, subsequently receives compensation under the laws of a place other than this State, the person from whom compensation under this Act is received may, in a court of competent jurisdiction, sue and recover from the person the amount described in subsection (3).

(3)  The amount that is recoverable under subsection (2) is—

(a)  the amount of compensation paid under this Act, or

(b)  the amount of compensation received under the laws of a place other than this State,

whichever is less.”

23. Section 48 WIRCA provides as follows:

“48 Person not to be compensated twice

(1) Compensation under this Act is not payable in respect of an injury to the extent that compensation has been received in respect of the same injury under the laws of a place other than this State (whether within or outside Australia).

(2) If a person receives compensation under this Act in respect of an injury and, in respect of the same injury, subsequently receives compensation under the laws of a place other than this State (whether within or outside Australia), the person from whom compensation under this Act is received may, in a court of competent jurisdiction, sue and recover from the person the amount described in subsection (3).

(3) The amount that is recoverable under subsection (2) is –

(a) the amount of compensation paid under this Act; or

(b) the amount of compensation received under the laws of the place other than this State –

whichever is less.

24. Subsection 1 of each provision provides a legal bar to the payment of the compensation to which an injured worker would otherwise be entitled under the legislation “to the extent that compensation has been received” under the laws of another place.

25. Under subsections 2 and 3 of each provision, if compensation is paid under the relevant statute, the subsequent receipt of compensation under the laws of another place gives right to a statutory right of recovery from the injured worker by the person paying the compensation first, quantified in accordance with subsection 3 of each provision.

26. Neither icare nor VWA argues that the respective section applies to permit the adjustment of the compensation paid seriatim by them before and after 6 August 2022. However, VWA argues that s 48 WIRCA constitutes a legal bar to icare’s claim. In effect, VWA submits that s 48 WIRCA, and its NSW equivalent under s 9AC WCA, provides the only permissible avenue of recovery in the event of a ‘double payment’.

27. Secondly, the other legal consideration concerns the interaction of the general law of restitution with the statutory scheme of workers’ compensation. As has been pointed out in the written submissions of the parties, the existence of statutory provisions constructed for the purpose of avoiding the retention of workers’ compensation statutory benefits and common law damages are not treated as sufficient to oust the operation of general law principles providing for the adjustment of damages where double compensation or satisfaction would otherwise be afforded to the injured worker because the statute does cover the whole field: eg Franklins Self Service Pty Ltd v Wyber 1999 48 NSWLR 249; [1999] NSWCA 390. I acknowledge, as Mr S Smith KC, who appeared for VWA with Mr I Griscti of counsel, argued, that the context of these authorities, which is the compensatory principle applicable in tort, is not entirely apposite to the resolution of the present dispute. At the same time, these authorities demonstrate that provisions such as s 151Z(1) WCA and s 369 WIRCA are not treated as exclusive or exhaustive in the sense of being the only available means by which the retention by the worker of double compensation may be avoided.

24. Moreover, Mr Ahmad directed my attention to Tran v Vo (Tran v Vo) where restitutionary principles established by David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; [1992] HCA 48 (David Securities) were referred to as applicable to the recovery of statutory benefits paid to, for, or on behalf of the plaintiff which had been paid under a mistake due to the plaintiff's innocent misrepresentation. There, Payne JA (with whom Macfarlan and Leeming JJA agreed) said (at [123]):

“The respondent has been paid workers compensation, but on the mistaken basis that she was entitled to it. The appellants’ workers compensation insurer is entitled at common law to be repaid because of the mistake: David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; [1992] HCA 48. The workers compensation insurer is also entitled to rescission in equity, because of the respondent’s (innocent) misrepresentation that she was a worker who had suffered an “injury”: Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315; [2003] HCA 57 at [25].”

29. In Tran v Vo, the plaintiff, who was employed by the defendant, visited her place of work on a social occasion and voluntarily assisted a friend to complete her duties on the day so they could socialise together. She suffered injury assisting her friend. She claimed workers’ compensation, which was paid “on the mistaken basis that she was entitled to it” (per Payne JA at [123]). No member of the Court was in any doubt about the ability of the workers’ compensation insurer to recover the mistaken payment on restitutionary grounds, notwithstanding that s 151Z WCA “had no application” (per Leeming J at [3]). In that context, the plaintiff’s undertaking to repay the compensation out of the proceeds of the damages was sufficient to avoid any reduction in the damages for avoidance of double compensation.

30. The important matter for present purposes is the continued operation of the general law principle albeit in the statutory context.

Facts once but no longer disputed

31. No party led any oral testimony before me. Instead, each of icare and VWA tendered contemporaneous documents from which I was asked to draw inferences. The documents were tendered either by exhibiting them to an affidavit, in the case of icare, or by tendering them as part of a Court Book in the case of each of icare and VWA.

32. From my review of the evidence, the full picture of Mr Tam’s employment history in Australia was not known to icare until the service of his evidentiary statement of 2 September 2020 (Exhibit 1 CDCB 2) which was tendered by VWA. Mr Tam’s solicitors provided accurate particulars to VWA on 20 October 2017 (as to which, see below).

33. From his evidentiary statement, the contents of which were not challenged, it is evident that Mr Tam was ordinarily resident in Malaysia. He was born in February 1965. For most of his working life, he had been a labourer in the building and construction industry in Malaysia, and from time to time, working overseas for a Japanese construction consortium. He had worked for Hong Kong and as far away as Algeria for these companies.

34. In 2015, he was introduced to Mr Andy Poh, then a resident of Kuala Lumpa, who was recruiting workers to perform fruit picking work and other farm work in Australia for MHP. I interpolate probably at that time MHP was a business name, the company was not registered until 19 January 2017 with a registered office at an accounting firm in the Docklands area of Melbourne.

35. In any event, it appears that Mr Tam accepted the offer of work in Australia in late 2015. He was happy to take this work as it was a change from his usual construction work, and he had been assured that the money was quite good. When he came to Australia, he worked as directed by Mr Cheong Foong “Henry” Heng. In his evidentiary statement, Mr Tam says he arrived in Australia on 28 November 2015.

36. Mr Tam landed in Melbourne and Mr Heng organised for him to work at various sites in Victoria, commencing in early December 2015. The work involved picking fruit and vegetables. He would normally work as part of a team of 5 to 10 workers. Some of the other workers were also residents of Malaysia.

37. Importantly (at p 4 [9]–[10]), Mr Tam said that apart from the work he commenced at Hillston for Super Seasons on the day of his accident, he worked for MHP at various locations in Victoria, including Cobram, Shepparton and Mildura. MHP would organise transport to and from the work locations and accommodation while working away from his usual residence.

38. Bank statements contained within VWA’s Court Book show Mr Tam’s address as a residence in Cobram, Victoria and demonstrate that he frequently operated an ATM there. The bank statement covers the period from 9 February to 31 August 2016.

39. I should also point out that these facts are consistent with particulars provided to VWA’s scheme agent by a letter dated 20 October 2017 (at [32] above; Exhibit B p 38). That letter post-dated the scheme agent’s letter of rejection of 11 October 2017 (Exhibit B p 21) by only nine days. Notwithstanding the certification of conciliation conference outcome dated 8 January 2018 which stated “genuine Dispute Certificate issued without a conference taking place” (Exhibit D). The conciliation officer was satisfied that there was a genuine dispute with respect to liability (Exhibit B p 58). One can only assume the letter of particulars was not provided to the Conciliation Officer. And that no internal review was undertaken by the Victorian scheme agent on receipt of the requested particulars.

40. The letter of particulars, when read with the questions set out on Exhibit B p 23, makes it quite clear that, on the day of his injury, Mr Tam asserted that he was working for MHP as that company’s employee. He had worked for MHP since approximately December 2015 as a fruit picker. It also confirmed the details that: he arrived in Melbourne on 28 November 2015; worked in Cobram for approximately one year as a fruit picker; moved to Shepparton in late 2016 and worked on farms in Shepparton and Cobram; and in May 2017, he moved to Mildura where he worked for two months before relocating to Hillston for the work for Super Seasons.

41. There is no evidence that the information provided to the Victorian scheme agent on 20 October 2017 was provided to the NSW scheme agent at or about the same time. For the whole of his time in Australia, there can be no serious doubt that Mr Tam’s employment with MHP was connected with the State of Victoria and not the State of NSW.

42. If one considers the provisions of s 37 WIRCA, each of the cascading subparagraphs of s 37(3) point to Mr Tam’s employment being connected with Victoria: Victoria was the State in which he usually worked for MHP; Victoria was the State in which he was usually based for the purpose of that employment; and were it otherwise, Victoria was the State in which MHP’s principal place of business was located. As I have said, these provisions are cascading and are cast in the alternative. The plain fact overwhelmingly established by the evidence is that Victoria is the State in which Mr Tam usually worked for MHP, and accordingly, the Victorian workers’ compensation legislation, WIRCA, is the legislation which responded at all material times to Mr Tam’s claim, rather than the NSW legislation, WCA. Despite my emphasis, as I have said, these facts are no longer in dispute.

What icare’s scheme agent knew when it accepted Mr Tam’s claim

43. The NSW scheme agent was notified of Mr Tam’s claim by claim form in the same terms as that lodged with the Victorian scheme agent. Nothing turns on this, but it was a form in use in NSW. The documents, to which I will refer, were annexed to the affidavit of Naomi Tancred, solicitor affirmed on 11 July 2024, forming part of Exhibit NT-1. I will refer to the documents according to the cross-claimant’s Court Book pagination (CCCB). The claim form to which I have referred is CCCB p 129 – 138.

44. Approval for the commencement of weekly and medical payments on a provisional basis was notified to Mr Tam by letter dated 10 August 2017 in respect of a “lumbar soft tissue injury that happened whilst you were at work on 13/7/2017” (CCCB p 149). The letter was signed by Mr Matthew Chilcott, Case Manager. It is important to observe that the NSW scheme agent was handling the claim on behalf of Super Seasons in respect of its potential liability as a principal under s 20 WCA, in circumstances where a contractor contracted for the execution of the whole or any part of any work undertaken by the principal does not have a policy of insurance at the time a worker employed in the execution of the work receives an injury. The principal is liable to pay compensation to the contractor’s employee as if that employee had been immediately employed by the principal, subject to a right of indemnity: s 20 WCA (see document headed ‘Internal Peer Review Request’ dated 14 August 2017 (CCCB p 154)).

45. On the same day that provisional liability had been accepted, another officer of the NSW scheme agent wrote to Mr Chilcott by email in the following terms:

“Sorry to do this to you but this claim (Number omitted) for worker Ching Keong Tam, should not be with this company. Worker was employed by [MHP] and contracted to work for [Super Seasons].

I received a email (sic) from our Melbourne office saying that the company [MHP] is in Melbourne.

So can you please cancel this claim number and I will pass on the documents to our Victoria Office.”

The enquiry seems to have been initiated by an officer of Super Seasons (Jennifer Rixon), which was followed up by the NSW scheme agent. It was confirmed that MHP was covered by a VWA policy (CCCB pp 156-159).

46. In response to a query from Mr Tam’s solicitors about the status of liability in the claim, Mr Chilcott responded:

“The liability will be assessed on 14/08/17.

We can send you a copy of the outcome if you wish.

I cannot see any reason why we would not be accepting this claim based on the information available.

We have not been able to contact the employer at such time to discuss further.”

I infer that the information available is that MHP was not insured in NSW, but Super Seasons appeared to be liable as s 20 WCA principal.

47. On 14 August 2017, a colleague of Mr Chilcott’s, Ms Hannah William, recorded the following:

“[Worker] is a subcontracted (sic) to our insured [Super Seasons], however is employed through [MHP] – potential State of connection issue.”

48. On the same day, Ms Williams wrote to Mr Tam. The stated reason for not accepting liability at that time was that Ms Williams was not able to confirm that Mr Tam was a worker within the meaning of the WCA. She referred to the information provided by Super Seasons and stated that a factual investigation was necessary. I should say that although the reference is to “worker”, given the context, I am of the view that this, in substance, is a reference to the “State of connection with the employment” issue (CCCB p 173).

49. At some stage around 15 August 2017, the NSW claim’s agent forwarded the claim to the Victorian claim’s agent on the basis it was a claim to which the Victorian legislation (WIRCA) applied. There was a comparatively swift response from a Ms Meghan Delaney in the following terms (CCCB p 177):

“This is an NSW claim.

The worker lives and works in NSW. If the employer does not have a policy in NSW this is something you would need to follow up.

We cannot register a NSW claim in Victoria simply because there is a policy registered here.”

50. On 24 August 2014, Brooksight Investigations forwarded its report to Mr Chilcott. The investigator had obtained a signed statement from Mr Tam who was still hospitalised at Royal North Shore Hospital. A statement was taken on 17 August 2014, only about a month after his very serious injuries. The information conveyed by Mr Tam does not clearly align with either the particulars provided to the Victorian scheme agent in October 2017 or the evidentiary statement filed in this Court in September 2020. However, Mr Tam was not called to give evidence and accordingly, was not cross-examined. I would not consider that the inconsistencies should be taken as reflecting upon his credit. He had suffered a catastrophic spinal injury. He was still in hospital only a month after that injury, English was not his first language, although he had the benefit of an accredited interpreter, and the statement was signed on his behalf by his son. Nothing is known of the son’s proficiencies in the English language. All of these circumstances, in my view, would fully account for the obvious inconsistencies. Mr Tam said that he sustained injury “whilst he was employed by Super Seasons”. He said the employment was arranged through a contractor “of which I have some knowledge”. He did not elaborate upon that observation and appears not to have been asked to (CCCB p 197).

51. When asked the name of his employer, Mr Tam replied, in substance, “I can only say it was a contractor” (CCCB p 198). He was unaware of the connection between MHP and Super Seasons. He said that he did not know the names of any of the people who arranged for him to work at the Hillston orchard. He said that his injury occurred about ten minutes after he started work on 13 July 2017. He did say that he had lived in NSW for only two or three days before the accident and previously had lived in Shepparton “for nearly a year working as a fruit picker”. He did not say for whom he worked during that period. Perhaps he was not asked. He apparently knew that he was working for MHP in NSW and the job could have taken up to 3 months. But he said, “I can’t remember if I had worked for [MHP] in any other locations either in or outside of NSW”.

52. From a subsequent report of 26 September 2017, Brooksight Investigations had been able to track down Mr “Andy” Tee D Phang. Mr Phang consented to be interviewed, but his statement was unsigned. He accepted that MHP was a contractor to Super Seasons for the provision of labour to harvest citrus fruit at the Hillston orchard. He stated MHP was insured in Victoria only and claimed to be in the process of obtaining NSW cover when the accident happened. Importantly, Mr Phang told the investigator the following (Exhibit C p 4):

“At about 8:30 a.m. on 13 July 2017, while awaiting starting instructions, Mr Phang stated he became aware a male person had fallen from a ladder. He attended the injury site and explained he did not know the claimant who was lying on the orchard floor beneath tangelo trees. He alleged he did not know the picker and spoken to him in Mandarin Chinese, again he stated he did not know the claimant nor had he paid him any wages. He commented that due to his date of birth he would not have employed the claimant, describing him as too old for this physical type of work” (my emphasis).

53. The investigator was unable to confirm if Mr Tam “followed the correct procedure in the commencement of employment with [MHP], albeit the principal of that company denied he ever knew the claimant”.

54. By way of interpolation only, I record that the Victorian scheme agent obtained an investigation report dated 4 December 2017 from LKA Group (Exhibit 1 CDCB 3). It is apparent that the investigator was investigating the statement that Mr Tam had been employed by MHP since January 2016. The investigators undertook quite a thorough investigation at that time and were unsuccessful in locating the person by the name of Mr Hoi, whom they believed to be the employer. The phone number provided was disconnected and no reply was received to any emails that were sent to an email address obtained by them. The principal of Super Seasons mentioned Mr Phang, but the investigators were unable to locate him at that time and attempts were made to track down Mr Heng, which were also unsuccessful. Mr Phang did not respond to a voice message left on the mobile phone number obtained from the principal of Super Seasons. Naturally, none of this information was available to the NSW scheme agent.

55. On 4 October 2017, Mr Chilcott wrote to Mr Tam on behalf of the NSW scheme agent stating (CCCB p 242):

“Liability has been accepted for your quadriplegia injury that happened whilst at work on 13-07-2017”.

Was the acceptance of liability on behalf of icare caused by mistake

56. The issue is whether the payments made to, for, or on behalf of Mr Tam on behalf of icare were caused by a mistake or were made voluntarily regardless of the true position. There is no doubt, having regard to the now undisputed facts which I have set out above, the decision to accept liability and to pay compensation including weekly payments of compensation, hospital, medical and the like expenses and permanent impairment compensation was erroneous. But the question remains, was it caused by a mistake, rendering it unjust for VWA to retain the benefit of icare’s mistake to the extent to which it relieved the former of liability to Mr Tam?

57. The distinction between mistake and voluntary payment is explained in the leading case of David Securities referred to above. At p 373, the plurality of Mason CJ, Deane, Toohey, Gaudron and McHugh JJ said:

“An important feature … is the emphasis placed on voluntariness or election by the plaintiff. The payment is voluntary or there is an election if the plaintiff chooses to make the payment even though he or she believes a particular law or contractual provision requiring the payment is, or may be, invalid, or is not concerned to query whether payment is legally required; he or she is prepared to assume the validity of the obligation, or is prepared to make the payment irrespective of the validity or invalidity of the obligation, rather than contest the claim for payment. We use the term “voluntary” therefore to refer to a payment made in satisfaction of an honest claim, rather than a payment not made under any form of compulsion or undue influence.”

58. In Advanced Arbor Services Pty Ltd v Phung [2009] NSWSC 1331, Johnson J referred to the decision in Kelly v Solari (1841) 9 M & W 54; 152 ER 24 (Kelly v Solari). At [94], His Honour said of that case:

“… an insurance company paid out a life insurance policy overlooking the fact that it had lapsed during the deceased’s lifetime for non-payment of premiums. This did not bar the right of recovery, although the court would have rejected the claim had it been established that the plaintiff had chosen to pay as a result of a conscious decision not to investigate the relevant facts carefully.”

His Honour at [91] had helpfully and pithily stated:

“Mistake as to fact giving rise to legal liability to make a payment is the most common category of mistake: Norwich Union Fire Insurance Society Ltd v William H Price Ltd[1934] AC 455. So long as the Plaintiff’s mistake caused the payment, restitution is generally available.”

59. Returning to David Securities, in that case, their Honours said (at 379):

“The fact that the payment has been caused by a mistake is sufficient to give rise to a prima facie obligation on the part of the [payee] to make restitution. Before that prima facie liability is displaced, [the payee] must point to circumstances which the law recognises would make an order for restitution unjust.”

There can be no restitution in such circumstances because the law will not provide for recovery, except when the enrichment is unjust. It follows that the recipient of a payment, which is sought to be recovered on the ground of unjust enrichment, is entitled to raise by way of answer any matter or circumstance which shows that his or her receipt (or retention) of the payment is not unjust” (Original emphasis).

60. Mr Smith argued that I could not be satisfied that a mistake caused the payment to be made to, for or on behalf of Mr Tam when it was equally likely that icare chose to pay Mr Tam’s honestly made claim, rather than fully investigating all of the circumstances relevant to Mr Tam establishing his entitlement under the NSW legislation. In the absence of evidence from Mr Chilcott, in particular, it was submitted I could not choose between these alternatives. Indeed it was put that I should draw a Jones v Dunkel (1959) 101 CLR 298 inference that Mr Chilcott’s evidence would not advance the plaintiff’s case, leaving me unable to choose between the two alternatives which were said to be of equal probability. I acknowledge that Mr Chilcott’s involvement in the matter was some 7 years ago and the evidence before me indicates that there had been a change in scheme agent before the denial of liability under WCA and the acceptance of liability under WIRCA in 2022. Even so, there is no evidence either that Mr Chilcott is unavailable to give evidence or that, given the effluxion of time, he has no recollection of the claim enabling him to give reliable evidence.

60. However, I am satisfied on the balance of probabilities, that mistake as to Mr Tam’s entitlement to compensation under WCA caused the scheme agent to make the payments it did to, for or on behalf of Mr Tam, which had the effect of relieving VWA of liability at the suit of Mr Tam at least to the extent of the amount of compensation paid under WCA: s 48 WIRCA.

61. I am satisfied that the payments were caused by mistake because Mr Chilcott and other officers of the NSW scheme agent were alive to “the connection of employment to the State” issue, even if it may have been referred to at times as a “worker issue”. The NSW scheme agent, on the information provided by Super Seasons attempted to have the Victorian scheme agent assume conduct of the claim and liability for it under the Victorian legislation, but was rebuffed. Indeed, the Victorian scheme agent maintained its denial of liability for approaching a period of 5 years after the true facts were particularised to it by Mr Tam’s solicitors in October 2017.

62. The NSW scheme agent did not consciously decide not to investigate the facts; quite the contrary. Two reports were obtained from Brooksight Investigations. Mr Tam, in his injured state, failed to give any information to the investigators supporting the fact that he was generally employed by MHP while in Australia, and that he was usually employed by that company in the State of Victoria, where he usually resided when present in Australia. While it might be said that the NSW scheme agent was affirmatively aware that MHP was the contractor for Super Seasons to provide labour, including Mr Tam’s labour, his inaccurate information to the investigator did not lend weight to the idea that he was usually employed by that company in Victoria. And this is a factor upon which Super Seasons as the NSW scheme agent’s insured could not cast light.

63. The mistaken information provided by Mr Tam was compounded by Mr Phang’s obviously false, but unsigned, statements to the investigator that he did not know Mr Tam and that Mr Tam had never worked for MHP in Victoria.

64. As I have said, this was not a case of the type referred to in Kelly v Solari where the NSW scheme agent made a conscious decision not to investigate the true facts. It made, in my view, the usual efforts an insurer would make to inform itself of the true facts before admitting the claim. Another, but lesser, factor is that while these investigations were ongoing, which proved unsatisfactory in the event, Mr Tam’s solicitors were quite properly pressing the NSW scheme agent to admit liability for their client’s catastrophic injuries on the basis that Super Seasons was a s 20 principal liable for compensation under WCA.

65. As at October 2017, the way things stood, when liability was accepted under the NSW Act for the purpose of s 9AA(5) WCA, Mr Tam was in the State of NSW when the injury happened, there was no other State identified as the relevant State of connection and no place outside Australia under the legislation of which Mr Tam may be entitled to compensation for the same matter. There was no information permitting an assessment to be made in accordance with s 9AA(6) about whether Mr Tam usually worked for MHP in Victoria.

66. I am positively satisfied that when the decision to accept Mr Tam’s claim was made in October 2017, it was made on the mistaken belief that s 9AA WCA was satisfied and that Mr Tam was entitled to compensation from Super Seasons, which company was liable as a s 20 principal because MHP was uninsured in NSW. I draw the inference that had the true facts been known, liability would have been denied, because on those true facts which are now undisputed, it is obvious that notwithstanding the occurrence of the injury in NSW, Mr Tam’s entitlements to compensation fell under WIRCA.

67. This conclusion, in my opinion, is also supported by the content of the Notice under s 78 of the Workplace Injury Management and Workers’ Compensation Act 1988 (NSW) dated 17 June 2022, which was forwarded to Mr Tam by the new scheme agent (CCCB p 249 – 252). Liability was denied because his employment was not connected with NSW as required by s 9AA and accordingly Super Seasons were not liable as a principal under s 20 WCA. It is also apparent from the reasons for that decision that, perhaps somewhat belatedly, the information contained in his evidentiary statement of 2 September 2020 was at variance with the information previously provided and, in particular, clearly established that he usually worked in the State of Victoria for MHP. It is also interesting to note, somewhat seamlessly, on 24 June 2022, the Victorian scheme agent was pleased to advise Mr Tam that his claim had been accepted and he was entitled to receive payments for his work-related injury, subject to Victorian workers’ compensation law (Exhibit E). However, it also made clear that it would only pick up where the NSW scheme left off when the notice period expired on 6 August 2022.

Some other legal requirements

69. It is well established that payments made to, for or on behalf of a third party which relieve a defendant from a legal liability may be recovered from the defendant by way of restitution: Country of Carleton v City of Ottawa [1965] SCR 663; Surry CC v NHS Lincolnshire Commissioning Group [2021] QB 896; [2021] 2WLR 805 at [121].

70. I accept Mr Ahmad’s argument, that in all the circumstances, as I have outlined them, the erroneous payment of compensation under WCA to, for or on behalf of Mr Tam had the practical effect of relieving VWA of its liability under WIRCA for Mr Tam’s claim. In fact, it had the legal effect of relieving that liability at least at the suit of Mr Tam: s 48(1) WIRCA. Even though compensation was erroneously paid under WCA, in Mr Tam’s hands it undoubtedly retained the character of compensation for his injury. On the authority of David Securities, it is for VWA to establish that it is not unjust for it to retain the benefit of icare’s mistaken payments to, for or on behalf of Mr Tam.

The defences raised

71. VWA relies upon two discrete matters. First, a change of position. There is no doubt that that defence is available in Australian law. The matter relied upon is that VWA has forgone its right to statutory indemnity, presumably against Super Seasons under s 369 WIRCA, which is cognate with s 151Z(1) WCA, as I have said. I am unable to accept this argument. Notwithstanding that it was a party to the broader proceedings for a small period of time, it did not raise that right to statutory indemnity against Super Seasons in these proceedings by way of cross-claim, despite the fact it had been paying compensation since 6 August 2022. Rather, it permitted Super Seasons to withdraw from the proceedings on the basis that pending cross-claims were dismissed with no order as to costs. Moreover, it does not seem to me that it has necessarily lost that right, other than possibly by way of an Anshun estoppel. It is well established that the statutory right of indemnity accrues upon the making of each payment of compensation under the legislation. To the extent to which it is bound to repay icare, the date upon which any right to indemnity would arise would be the date of payment. It seems to me, at least at a practical level, that any restitution paid to icare would retain the character of the compensation originally paid by icare, or perhaps the character of the compensation that should have been paid by VMA, in the sense that I have already discussed.

72. The second matter is s 48 WIRCA. As I have said and outlined, VWA says that s 48 creates a legal bar to recovery by icare because it provides an exclusive provision for the adjustment of conflicting obligations under the workers’ compensation legislation of other jurisdictions.

73. As I have said, s 48(1) creates a legal bar to Mr Tam claiming compensation under the Victorian scheme to the extent that he has received compensation in respect of the same injury under the NSW scheme. As will be demonstrated, the amount received under the NSW scheme is of the same order of magnitude as the amount payable under the Victorian scheme during the period of 13 July 2017 to 6 August 2022. However, icare is claiming in its own right, and not through Mr Tam, that s 48(1) is no bar to icare’s claim by parity of reasoning with Tran v Vo (referred to above). Section 48(2) is not applicable in its terms. It only applies when an injured worker first receives compensation under the Victorian scheme and subsequently receives compensation under the laws of a place other than Victoria. It creates a right of recovery in VWA limited by the provisions of s 48(3), which right of recovery, for the avoidance of double compensation, has no application in the present case.

74. I am not satisfied that VWA has established that it is not unjust for it to retain the benefit of its relief from liability to Mr Tam during the period that statutory benefits under the NSW scheme were paid to, for or on behalf of him.

75. Mr Ahmad also relied upon the doctrines of recoupment and subrogation. With no disrespect, it is not necessary for me to address those issues, given the decision I have made so far. Were I wrong about this, I would be of the view that Mr Smith’s argument is correct that in both cases the elements required to be proved have not been established. Recoupment lies when one person liable relieves another person having the same liability by payment of the sum due such as payment to a creditor by a surety under a guarantee. Subrogation applies where having relieved the liability of a third party, the payer is placed in the shoes of the creditor for recovery from the third party. That is not this case. In any event, icare does not sue in Mr Tam’s name seeking to enforce his rights against VWA. The procedural issue may be overcome by the fact he is named as a cross-defendant. However, the substantive issue would run into the same legal bar provided by s 48(1) and accordingly the claim based on subrogation would fail.

Quantum

76. The benefit obtained by VWA cannot exceed its liability to Mr Tam under WIRCA for the period during which icare paid compensation under the NSW Act under mistake. I accept that the relevant amount that would have been payable under WIRCA is $1,558,256.34 in accordance with the schedule admitted as Exhibit F. On my calculations based upon Exhibit A, the sum of $1,538,154.20 was paid to, for or on behalf of Mr Tam under the NSW legislation. Obviously this is a slightly lesser figure. This latter figure is also less than the figure of $1,613,842.23 claimed in icare’s letter of demand of 6 October 2022.

77. Lest I have made some error in my calculations, I think it appropriate for the parties to confer and to bring in short minutes of order providing a monetary judgment for icare against VWA on its claim in restitution in an amount not exceeding the maximum liability of VWA in accordance with Exhibit F. It follows from what I have said about s 48(1) that icare’s claim against Mr Tam fails and judgment in his favour should be entered on the cross-claim.

78. Issues about pre-trial interest and costs, including Mr Tam’s costs (if any) are outstanding and the parties should confer about those matters and attempt to reach an agreement. I will order that if agreement is reached about these matters short minutes may be brought in by 3 November 2025 by lodgement with my chambers by email. I will make final orders in chambers without the need for any party to appear. If agreement is incapable of being reached, icare and VWA are to provide a written submission setting out the orders for which they contend and short submissions stating the reasons why those orders should be made by again by 3 November 2025. Mr Tam has liberty to apply on the question of costs, absent agreement.

79. My orders are:

1. The active parties, VWA and icare, are to confer and agree upon short minutes of order in accordance with these reasons which short minutes may be lodged with my chambers by email on or before 3 November 2025;

2. In the event of disagreement, each of icare and VWA are to provide short written submissions stating the final orders for which they contend and the reasons why those orders should be made, which written submissions may be lodged electronically with my chambers by 3 November 2025; and

3. Mr Tam has liberty to apply in relation to costs in default of agreement by written application lodged with my chambers by email on or before 3 November 2025.

**********

Decision last updated: 22 September 2025