Supreme Court New South Wales Medium Neutral Citation: Tam v Super Seasons Pty Ltd [2024] NSWSC 873 Hearing dates: 15-16 July 2024 Date of orders: 16 July 2024 Decision date: 16 July 2024 Jurisdiction: Common Law Before: Campbell J Decision: Grant leave to the cross claimant to amend the third cross claim consistently with the reasons of this judgment. Catchwords: CIVIL PROCEDURE – pleadings – amendment – late application for amendment – late briefing of new counsel – proceedings commenced in 2020 – loss of ten hearing days in October 2022 – proposed amendment essentially the same as the case propounded in June 2023 – no forensic prejudice – imperative the matter proceed – leave granted Legislation Cited: Civil Procedure Act 2005 (NSW), s 91 Law Reform Miscellaneous Provisions Act 1946 (NSW), s 5 Workers Compensation Act 1987 (NSW), ss 9AA, 9AC, 20 Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s 48 Cases Cited: Aon Risk Services Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Texts Cited: Mason et al, Mason and Carter's Restitution in Australia (4th ed, 2021, LexisNexis Australia) Category: Procedural rulings Parties: Ching Tam (Plaintiff) Super Seasons Pty Ltd (First Defendant) Victorian WorkCover Authority (Second Defendant) Workers Compensation Nominal Insurer (Third Defendant) Representation: Counsel: R Sheldon SC with A Parker (Plaintiff) J Sexton SC (First Defendant) S Smith KC with I Griscti (Second Defendant) A Ahmad (Third Defendant) Solicitors: Acer Law (Plaintiff) Holman Webb (First Defendant) Lander & Rogers (Second Defendant) Hicksons (Third Defendant) File Number(s): 2020/56877 Publication restriction: Nil ex tempore JUDGMENT (revised) 1. These proceedings started off life as long ago as 21 February 2020 when the plaintiff filed a statement of claim seeking damages for a catastrophic personal injury he sustained on 13 July 2017 in an industrial accident while working as a fruit picker on a property in the Riverina region of NSW operated by the first defendant. Through various procedural and other developments since, the case has come to a point where the only remaining matter to be determined is whether the third defendant, the Workers Compensation Nominal Insurer ("iCare"), is entitled to recover from the second defendant, the Victorian WorkCover Authority ("VWA"), the workers compensation paid to, for or on behalf of the plaintiff under the terms of the Workers Compensation Act 1987 (NSW) ("WC Act"). 2. The essential aspect of the claim, without oversimplifying it, is that the third defendant claims to have paid about $1.6 million in various compensation benefits by mistake. It is unnecessary to go into all of the details of how that is said to have come about, other than to say that, on material that has been read before me on an application to amend iCare's cross claim, it appears that shortly after the plaintiff suffered his catastrophic injury, and at a time when he was being treated in the Royal North Shore Hospital in Sydney, a claim was made under both the WC Act and the Workplace Injury Rehabilitation Compensation Act 2013 (Vic) ("WIRC Act"), being the Victorian equivalent of the NSW workers compensation legislation. 3. In a general sense, there seems to have been some to-ing and fro-ing between the scheme agents for the respective inter-state schemes as to which Act, and which jurisdiction covered the plaintiff's injury. As it happened, the scheme agents acting in each State on behalf of that State's statutory fund were subsidiaries of Allianz Insurance Australia Limited, although nothing turns on that. 4. The way that the issue about insurance coverage arose was that at the time of his injury, the plaintiff was working for a small Victorian labour hire company, who provided his labour to the first defendant for him to perform work picking tangelos. The first defendant had a policy of workers compensation insurance under the NSW legislation, while the labour hire company had a policy of insurance under the Victorian legislation but no insurance under the NSW legislation. 5. It is not necessary for me to deal in detail with the respective legislation for the purpose of this interlocutory judgment, except to say that under each of the NSW and Victorian schemes, there are choice of law provisions governing the extraterritorial operation of the schemes respectively, which create a defined concept to identify the State having the closest connection to the injured worker's employment. Essentially, the dispute between the respective scheme agents centred on that concept. After a short time, the Victorian scheme agent denied that Victoria was the relevant State and sent the matter back to the NSW scheme agent who, in due course, commenced payments under the NSW legislation. 6. That action of commencing payments is described in the current iteration of a proposed further amended statement of cross claim as a conscious but mistaken understanding of the NSW insurer's legal obligations. The matter was a little complicated because the insurances, as I have indicated, were different. Because the labour hire company was uninsured in NSW, the first defendant was said to be liable as a principal under the provisions of s 20 WC Act. However, that section was subject to the choice of law provision too, which in the case of NSW is s 9AA WC Act. 7. The proceedings have had a somewhat tortuous process through this Court, but it is relevant to say that the matters had been listed for a ten-day hearing in October 2022 before my colleague, Garling J. But at that stage, there were three defendants and two cross claims joining issue amongst them. The first and second cross claim were claims for statutory contribution under s 5 Law Reform Miscellaneous Provisions Act 1946 (NSW). The third cross claim had not been instituted at that time. 8. When the matter came on for hearing before Garling J on 10 October 2022, the matter having been case managed to that point in time, it appears that VWA had decided that contrary to pleadings it had filed, the plaintiff's employment was indeed relevantly connected with the State of Victoria, and it commenced paying workers compensation under the Victorian legislation from 6 August 2022. And iCare ceased payments under the NSW legislation. 9. On 22 October 2022, iCare's solicitors wrote to VWA's solicitors making a demand for reimbursement of the compensation iCare had paid to, for, or on behalf of the plaintiff. This demand apparently went unanswered. On 8 June 2023, iCare filed the third statement of cross claim seeking restitution of the total amount it had paid on the unjust enrichment ground. VWA filed its defence on or about 12 October 2023. It is a relatively uninformative document when compared to issues identified in VWA's written opening submissions. Paragraph 6, alleging payment by mistake under WC Act is denied, an unspecified change of position is raised by way of defence, as is an equally unidentified statutory time-bar. 10. It should not be overlooked that the plaintiff remains as the second cross-defendant. While his counsel have been excused because neither iCare nor VWA seek any monetary remedy against him, his defence filed on 11 July 2023 remains on the record. It is relevant for present purposes to note it is more expansive than VWA's document. Mr Tam denied the entitlement to restitution and pleaded facts suggesting that the payments were made by iCare on a voluntary basis (that expression is not deployed) (at [8]); denying any mistake or any unjust enrichment (at [9]); asserting that the payments had been made on an ex gratia basis rather than in purported compulsion of law under the WC Act (at [10); and raising a change of position defence and the doctrine of laches (at [12]). I refer to these matters to demonstrate these were issues for determination, even if VWA's defence was opaque. 11. I have given this rather long introduction to put in context the dispute which I am currently seeking to resolve. Because of the change in circumstances in October 2022, Garling J was persuaded that it was in the interests of justice that the hearing before him be adjourned, and the matter was eventually listed for a hearing to commence on 15 July 2024 before me with an estimate of seven days' duration. On this day, a number of developments occurred, the most significant of them being that the plaintiff, with the consent of each defendant discontinued his claim for damages, it being agreed there be no order as to costs. Consequently, the first and second defendants consented to the dismissal of their respective cross claims seeking statutory contribution, being the first and second cross claims, with no order as to costs. These dismissals were made under s 91 Civil Procedure Act 2005 (NSW), without any determination of the merits of the cross claim. 12. The only remaining matter extant in the proceedings then is the third cross claim filed on 8 June 2023. There are yet further developments I need to mention. That is this: that for reasons explained in the affidavit of Naomi Tancred (the solicitor with daily carriage of the matter for iCare) affirmed on 10 July 2024, iCare seeks to amend its statement of cross claim. It can fairly be said that that amendment document and the notice of motion seeking leave to file and rely upon it, especially in view of the history of the matter, were certainly filed at the heel of the hunt, being 11 July 2024. The notice of motion was then served on the second defendant and forwarded to my chambers. 13. The only explanation for the delay in seeking to amend the cross claim appears at para 4 of Ms Tancred's affidavit, which is that counsel previously briefed felt compelled to withdraw because of a perceived conflict of interest. Mr A Ahmad of counsel who has appeared before me yesterday and today, was briefed only on 1 July 2024. Following his consideration of what was, no doubt, a voluminous brief, he advised that certain amendments should be made to the statement of cross claim, and recommended, in Ms Tancred's words, "that the legal characterisation of the pleadings" be amended to the form in which they now appear. 14. Following the commencement of the hearing yesterday and discussion amongst Mr Ahmad, Mr S Smith KC (who appears with Mr I Griscti for VWA) and myself, the proposed amendments have taken on a different form, and a number of those legal characterisations which appeared in the proposed amendment in its original form have now been dropped. Nonetheless, VWA opposes leave being granted to iCare to amend the statement of cross claim. A number of points are made, and I have heard extensive argument. 15. Not in any particular order, these are the points made by Mr Smith so far as I follow them: the first point is the lateness of the application to make the amendment; the second point is that the explanation for the delay in making the amendment is not adequate in as much as, with no disrespect to Mr Ahmad, this is a case of new counsel briefed late forming a different view from that previously formed as to how the case should be formulated and presented; and the third point is that there are aspects to the changes of the way the matter has been pleaded, which, had they been made in a timely fashion, VWA would have taken the opportunity to request further and better particulars, or perhaps consideration would have been given to administering interrogatories in respect of the newly cast averments. 16. There is also an objection based upon an averment that the Victorian scheme agent represented to the NSW scheme agent, as I have already narrated, that the WC Act and not the WIRC Act applied, a matter which could have been investigated had it been raised in a timely way. Before resolving the issue of leave, I should say that I have considered the application in the light of the written opening submissions that counsel have provided in compliance with case management requirements. 17. As I made clear to counsel yesterday, perhaps slightly pre-emptively, that the overriding concern in this case, given the long history which I have recounted in summary form, and focussing on the fact that ten hearing days were lost in October 2022, is that any further adjournment will result in the loss of a further seven hearing days. The imperative is the case must go on. 18. There is no suggestion of any prejudice on the part of either party if there is any adjournment which cannot be cured by an order for costs, given that the plaintiff's claim and the cross claims which are appurtenant to it have been dropped, and the case will not take as long as seven days in any event. Even so, as the High Court of Australia emphasised in Aon Risk Services Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27, there is a real public interest in court resources being utilised fairly in the interest of all litigants and of the community generally. From the careful arguments of counsel, I do not understand either party to gainsay that primary concern of mine expressed yesterday. I must approach the application for amendment on the basis that any prejudice to the public interest in wasted court time cannot be cured by an adjournment. I also bear in mind that each of the active parties remaining is a State government instrumentality, and that public money could be wasted if an adjournment was sought and granted, notwithstanding that each would be good to satisfy an order for costs. 19. As I discussed with Mr Smith during his address, some of the matters to which he has referred, it seemed to me, were matters of substantive rather than forensic prejudice. And that those matters of substance could be dealt with in the running of the case, as so often occurs in the conduct of litigation. It does seem to me that given the paring of the proposed amendment that has been undertaken by Mr Ahmad in the extra time he has been allowed since his late entry into the list reduces some of what might have been controversial aspects of the legal categorisation that iCare might have sought to propound. It does seem to me that the case is essentially the case that was made on 8 June 2023. That is to say, it is a claim for restitution on the basis of unjust enrichment because of a mistake of fact or a law as the case may be. And it is characterised in various ways at different times. 20. Essentially, it is in the old form of action a claim for money had not received to the benefit of the VWA in its conception, although it is pleaded by reference to more elaborate law than that statement implies. It is also the case that although the written submissions by Mr Ahmad rely upon general law concepts to justify the pleading, as is often said, there are few aspects of the general law which are not intruded upon by statute law in the 21st century; and that where statues intervene, they are of the first important and should be the first point of reference in the determination of legal rights and responsibilities which they inform. 21. In respect of each of the Victorian legislation and the NSW legislation, my attention has been drawn to specific provisions which it may be said have an effect upon the general law right of one authority to recoup payments erroneously made from another. The relevant provisions are s 48 WIRC Act and s 9AC WC Act. In any event, I am satisfied that there are substantive and substantial issues to be resolved. 22. Turning then to the document, I am of the view that the various prayers for relief which are maintained, being prayers 3, 5, 6, 7 and 9, substantively speaking, are only really refinements of the general thrust of the claim that was made back in June 2023. I say nothing about their prospects of success which would be inappropriate at this time. But they seem to be elaborations of the basic thrust of the case, and I do not think what remains really changes the legal characterisation of the relief sought in any substantive or unfair way. Mr Smith drew to my attention the changes to what had been the central aspect of the formulation of the substance of the claim at paras 6 and 7. However, para 6 has been heavily pruned and I am not sure that any specific complaint is made about that. 23. Under the heading "Pleadings and Particulars" para 8 is formulated in these terms: "[t]he payments were made as a result of a conscious but mistaken understanding of the [iCare's] legal obligation to pay". And there was a natural concern that that may have been an important shift in emphasis or formulation which could have given rise to a need for the VWA to make interlocutory applications to better elucidate that matter. 24. However, counsel have drawn to my attention para 5.6 of Mr Ahmad's written submissions where a quote is set out from a well-known text, Mason et al, Mason and Carter's Restitution in Australia (4th ed, 2021, LexisNexis Australia) at 170-171. It is directly lifted from the first of three categories listed in the paragraph quoted. I should say that as I understand the context, and I have not gone back to the original work in the time available to me, the learned authors were setting out various explanations for a person making an erroneous payment, not all of which would give rise to a right of restitution for the error. 25. But Mr Ahmad has picked up and utilised Category 1 which is a person who pays because that person has a conscious but mistaken understanding of his or her obligation to pay or the payee's legal right to receive the money. And I do not understand the juxtaposition of the adjectives: "conscious" and "mistaken" to be a particular term of art to give rise to any specific legal consequence. I think "conscious" just refers to a deliberate, albeit "mistaken" payment, rather than a payment which is inadvertent, or otherwise made without thinking. It is not an element for unjust enrichment that the payment be inadvertent or be made absent-mindedly. I would allow para 8 to stand on that basis. Paragraph 10, and the related para 22, are just a formulation of the claim, and I do not understand Mr Smith to make any particular objection to those formulations, other than they may be surplusage or otiose. 26. Paragraph 13 raises a mixed bag of matters, some of which are references to statutory obligations, either under one or other of the NSW workers' compensation Acts, or subordinate legislation made under them. None of the provisions which are invoked are specified, and in my judgment, that is a defect in the pleading, but moreover, sub-paras 13(a), (b) and (c) are the very type of matter about which the cross defendant, VWA, may genuinely wish to seek further particulars or interrogate in terms of what effect those provisions had in bringing about the result of which iCare complains. Having said that, sub-paras (d), (e) and (f) fall into a different category. The facts which I have narrated, which seem fairly clear from documentary evidence tendered in support of the application, would seem to be the basis of those assertions. However, so far as (d) and (e) are concerned, which do relate to the conduct of VWA, or its scheme agent, I do not understand those matters to be matters which constitute an element of the cause of action propounded by iCare. They are as follows: "(d) representatives of the [VWA] refused to accept liability for, and/or otherwise process the workers compensation claim when requested by [iCare]. (e) [VWA]represented that [iCare] was responsible for the payment pursuant to s 20 of the [WC Act]." Those matters may provide some context, but I do not understand them to be any part of the cause of action that has been propounded in the cross claim. I am not suggesting any other cause of action is available, but for instance, it is not asserted that there was false or misleading conduct on the part of VWA's scheme agent; there is no pleading of any claim based upon misrepresentation; and it is not said, in any event, that VWA or its scheme agent had any obligation to only make statements that were in fact correct. None of these matters is any part of the cause of action that is propounded. It may add flavour or context, but to my mind, those matters are not material facts, and I would reject those matters in the pleading. 1. On the other hand, I think that the legal assertion that s 9AA(5) WC Act operated, whether presumptively or not, is a material consideration, and is likely to be relevant having regard to other evidence I have seen in the court book in relation to the outcome of factual investigations carried out on behalf of iCare. I would strike out sub-paras 13(a) to (e) of the proposed claim, and the word "presumptively" from sub-para 13(f). 2. So far as para 15 is concerned, I am prepared to allow that to stand as a conclusory statement, rather than a pleading of any material fact that requires investigation. It draws together the strands of the other averments contained in the cross claim and is the destination which iCare is striving to reach. It simply characterises the nature of the case as being a case which absolved VWA from liability under the WIRC Act. As I say whether that is made good in the end will depend upon a consideration of all the circumstances, including the terms of the respective legislation, but I am not of the view that the maintenance of it is either hopeless or a matter which requires any particular investigation by VWA, and I would allow it to stand. 3. There is a contestable issue about whether or not the equitable doctrine of subrogation properly applies in this case, and I have read the written submissions on either side of the record in that regard. It would seem to me that I am in no position to determine whether or not that claim will be made good until I have heard all the evidence and all the argument. I accept that there is something to be said on either side of the record for and against, but I am not of the view that the maintenance of that argument causes any forensic prejudice. To the extent to which that claim may be defeasible, then doubtless VWA will raise those matters as matters of substance during the hearing. 4. The fact that I have dealt with the proposed amended cross claim as I have is not really the end of the matter. I still need to deal with the matter of an explanation. As is well known in the modern age, amendments, especially late amendments, are not to be had for the asking, and an important part of the Court's exercise of its discretion is an inquiry into the forensic diligence exercised by the party seeking the amendment. As Mr Smith raised with me, seldom can it be a full and satisfactory explanation that a change of counsel results in a change of heart about how the case might best be presented. There are too many reasons why that is so to expound now in this already too long ex tempore interlocutory judgment. That is a matter which weighs against the exercise of my discretion in this case. However, given the imperative I have identified of this matter being heard, and determined one way or another, I think overall the interests of justice, which after all is the guiding principle, require that I permit the case to go forward with the amendments which I have indicated I would be prepared to allow. 5. For those reasons, I give leave to the cross claimant to amend the third cross claim consistently with the reasons I have just given. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 July 2024