CIVIL & CIVIC LIMITED v BREARTON SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL CLARKE JA, MEAGHER JA and HANDLEY JA 2 , 29 April 1993 [1993] NSWCA 59 FACTS: Plaintiff/respondent sustained injury in the course of his employment by a sub-contractor employed by the appellant. Plaintiff sued employer and appellant at Common Law. Proceedings against employer dismissed. Appellant claims under s23 of the now repealed Workers' Compensation Act (NT) that the respondent's claim is precluded where s14 Workers' Compensation Act (NT) operates to include a party in the position of the appellant, (a 'principal') under the term 'employer' for the purposes of this Act. HELD: (per curiam) Workers' Compensation Act (Northern Territory)(repealed) ss 14, 22, 23, Byrnes v Groote Eylandt Mining Co Pty Ltd (1990) 19 NSWLR 13 Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR 120 McKain v R W Miller & Co Pty Ltd (1988) 169 CLR 41 Stevens v Head (High Court, 18 March 1993, unreported) Hood Constructions v Nicholas (1987) 9 NSWLR 60 Vanramer Pty Ltd v Higgins (1991) 24 NSWLR 661 (1) Facts of the present case do not bring the appellant "principal" within s 14 "employer" and therefore s23 of the Act does not apply to the appellant. (2) Section 23 is a substantive rather than procedural enactment of the Northern Territory. Accordingly, it has no application in NSW. McKain v R W Miller & Co (South Australia) Pty Limited; Stevens v Head. Clarke JA. Peter Brearton ('the plaintiff') sued his employer, R W Bass Pty Ltd ('the employer'), for injuries he sustained on 14 January 1985 in Darwin during the course of his employment. At that time the employer was working on a construction site as a sub-contractor of Civil and Civic Ltd ('the defendant'). On 30 July 1990 the plaintiff commenced proceedings in this court against his employer and the defendant. Subsequently, the plaintiff consented to the entry of judgment in favour of his employer and since that time has sought to pursue his action only against the defendant. It would appear that the reason why he discontinued his proceedings against his employer was that he had received payments in about June or July of 1985 from his employer under the Workers" Compensation Act (Northern Territory) ('the Act') which was in force at the relevant time (it was then an Ordinance but that is presently of no moment). The plaintiff apparently accepted that his right to claim damages in anaction commenced in 1990 against his employer was barred by the provisions of s 23(3A) of the Act. However, he did not receive payments by way of workers" compensation from the defendant and he has sought to maintain his action against that party. The defendant, however, contended that the proceedings against it are also barred by virtue of s 23(3A) of the Act and filed a notice of motion seeking to have the 2 UNREPORTED JUDGMENTS proceedings struck out. Those proceedings were heard by Ireland J who found for the plaintiff and it is his judgment which has led to the present appeal. Before Ireland J, and this Court, two questions arose. They were: (1) Whether, upon the assumption that s 23(3) of the Act applies to proceedings brought in New South Wales, the present action was statute barred because the plaintiff did not commence his proceedings within three years of the receipt of the first payment of compensation; (2) Whether s 23 of the Act provided a defence in proceedings brought in New South Wales. That was a view reached upon similar facts by this Court in Byrnes v Groote Eylandt Mining Co Pty Ltd (1990) 19 NSWLR 13 and it is submitted that this Court should apply that decision. The first point requires an examination of the provisions of the Act and in particular those provisions which deal with a worker's right to sue his or her employer and third parties. The relevant sections are ss 22 and 23 which are as follows: SECTION 22 REMEDIES BOTH AGAINST THE EMPLOYER AND A STRANGER 22(1) [Liability — other than employer] If an injury in respect of which compensation is payable under this Act is caused under circumstances that appear to create a legal liability in some person other than the employer to pay damages in respect of the injury, the worker may takeproceedings against that person to recover damages and may also make a claim against his employer for compensation. 22(1A) [Compensation to be repaid] Where a worker receives compensation under this Act and recovers damages (other than damages for pain and suffering or loss of amenities of life in respect of the injury to a resident of the Territory, within the meaning of the Motor Accidents (Compensation) Act, in or as a result of an accident, within the meaning of that Act, that occurred in the Territory) from another person in respect of the same injury — (a) he shall repay to his employer such amount of the compensation as does not exceed the amount of those damages recovered from that person; and (b) upon notice to that person the employer shall have a first charge upon moneys representing those damages payable by that person to the worker to the extent of compensation which the employer has paid under this Act to the worker. 22(1B) [Payment by third party to employer] Where a worker has received compensation under this Act but no damages to which subsection (1A) applies, or less than the full amount of those damages to which he is entitled, the person liable to pay the damages shall indemnify the employer against so much of the compensation paid to the worker as does not exceed those damages for which the person is liable and subsequent payment of that money shall, to the extent of the amount paid, be a satisfaction of the liability of that person to the worker. 22(2) ['Compensation'] For the purposes of this section, "compensation" includes a payment under section 11. 22(3) [Application includes Nominal Insurer] Where the Nominal Insurer makes a payment to a worker under this Act, the provisions of this section apply as if references to the employer include references to the Nominal Insurer, but so that — (a) the Nominal Insurer is not entitled to receiver, under subsection (1A), more than the amounts paid by him under this Act; and(b) the rights of URJ CIVIL & CIVIC LIMITED v BREARTON (Clarke JA) 3 the Nominal Insurer under this section shall have priority over any rights of the employer under this section arising out of any payment of compensation by the employer. SECTION 23 LIABILITY OF THE EMPLOYER INDEPENDENTLY OF THIS ACT 23(1) [Compensation under Act] Except as provided by this Act, a worker shall not be entitled, in respect of personal injury (by accident) arising out of or in the course of his employment to receive compensation or any payment by way of compensation from his employer both independently of and also under this Act. 23(2) [Repatriation Act] If the injury is an injury in respect of which a worker is entitled to receive a pension, other than a service pension, under the Repatriation Act 1920 of the Commonwealth, the worker shall not be entitled to compensation under the provisions of this Act. 23(3) [Recovery through proceedings] Subject to subsection (3A), where personal injury is caused to a worker in circumstances which appear to create a legal liability in his employer to pay damages in respect thereof and the worker has received compensation under this Act, the worker shall be entitled to take proceedings against his employer to recover damages. 23(3A) [Time limit for proceedings] A worker shall not be entitled to take proceedings under subsection (3) unless he commences those proceedings — (a) (b) within 3 years after the date upon which he received payment, or the first payment, of compensation under this Act; or if, on that date, he is under a legal disability or, as a result of the injury, a physical disability that prevents or hinders him from commencing the proceedings, then within 3 years after the date on which the disability ceases. 23(4) [Duplication of damages] Aworker who recovers damages (other than damages for pain and suffering or loss of amenities of life in respect of the injury to a resident of the Territory within the meaning of the Motor Accidents (Compensation) Act, in or as a result of an accident, within the meaning of that Act, that occurred in the Territory) from his employer in respect of an injury shall not be entitled to compensation or any payment under this Act in respect of the same injury and any sum received by him under this Act in respect of that injury prior to the award of the damages shall be deducted from the amount of the damages recoverable from his employer. The primary submission of Mr Higgs, who appeared for the defendant, is that s 23(3A) of the Act applied and that the plaintiff was not entitled to maintain his present proceedings against the defendant. It will be noted that s 23(3A) refers to proceedings under subs 3 and in its context it is concerned, and only concerned, with proceedings against the worker's employer. For this reason it is fundamental to the defendant's argument that his client fell within the description 'his employer' in s 23(3). Clearly the defendant was not the plaintiff's employer but Mr Higgs argues that another provision of the Act deems him to be the employer for the purposes, inter alia, of s 23. That other provision is s 14 which reads: SECTION 14 SUBCONTRACTING 14(1) [The principal'] Where any person (in this section referred to as "the principal'), in the course of or for the purpose of his trade or business, contracts with any other person (in this section referred to as "the contractor') for the execution by or JOBNAME: No Job Name PAGE: 4 SESS: 1 OUTPUT: Mon Feb 25 18:11:20 2008 /reports/caseml]/case/urj/9305354 UNREPORTED JUDGMENTS 14(2) 14(3) under the contractor of the whole or any part of any work undertaken by the principal, the principal shall be liable to pay to any worker employed in the execution of the work any compensation under this Act which he would have been liable to pay if that worker had been immediately employed by him; and where compensation is claimed from or proceedings are taken against the principal, then, in the application of this Act references to the principal shall be substituted for reference to the employer, except that the amountof compensation shall be calculated with reference to the earnings of the worker under the employer by whom he is immediately employed. [Principal indemnified] Where the principal is liable to pay compensation under this section, he shall be entitled to be indemnified by any person who would have been liable to pay compensation to the worker independently of this section. [Recovery from contractor] Nothing in this section shall be construed as preventing a worker recovering compensation under this Act from the contractor instead of the principal. This section is concerned exclusively with claims for compensation under the Act. It is not concerned with claims for damages under the common law or any 20 other Act. There can, in my view, be no doubt about that proposition. The first part of s 14(1) deals with the liability of a head contractor, described as the principal, to pay compensation under the Act to the employee of a sub-contractor. Although the Act does not use the descriptions 'head contractor' and 'sub-contractor' I have adopted them for the purposes of convenience as they 25 adequately convey the idea I seek to communicate. In addition, the concluding words of s 14(1) are concerned solely with the calculation of compensation payable under the Act and sub sections 14(2) and (3) relate to the payment of compensation under the Act. Notwithstanding the fact that the section is concerned solely with the payment 30 of compensation under the Act Mr Higgs submits that one of its effects is to deem a head contractor an employer for the purposes of s 23 and to do so whether or not the head contractor had been subjected to a claim for compensation by, or paid compensation to, a sub-contractor's worker. He submits that this result flows from thenatural meeting of the words 'and where compensation is claimed from 35 or proceedings are taken against the principal' (my underlining). According to this interpretation the deeming provision applies when one of two events occur. If compensation is claimed from the head contractor then, to use the terminology of the Act, references to the principal shall be substituted for references to the employer in the application of the Act. 40 Additionally, where proceedings of any type are taken by the worker against the principal the same substitution takes effect. If this be correct then the commencement by a worker of proceedings at common law to recover damages against a head contractor lead to the consequence that in the application of the Act references to the employer should be read as though they included references 45 to the principal. It is helpful, in order to emphasise the point, to apply the reasoning to s 23. Where, a worker takes proceedings against a head contractor for damages then the concluding words of s 23(3) should relevantly be understood as meaning 'the worker shall be entitled to take proceedings against his employer or a principal 50 to recover damages'. Similarly, s 23(3A) should be understood as providing that the worker shall not be entitled to take those proceedings unless he commences URJ CIVIL & CIVIC LIMITED v BREARTON (Clarke JA) 5 them within 3 years from the date of receipt of the first payment of compensation under the Act (and, I add, that would be so whether the compensation was paid by the employer or principal). The immediate difficulty that I have with this submission is that s 14 is not concerned with proceedings other than proceedings to recover compensation under the Act. The substantive right provided by subs (1) is a right enabling the worker to claim compensation under the Act against a principal and to render that principal liable to pay thatcompensation "which he would have been liable to pay if that worker had been immediately employed by him'. In that context it seems plain enough that the proceedings to which later reference is made are proceedings against a principal to enforce the right granted by the sub-section. Upon that view the word 'proceedings' in s 14(1) means 'proceedings under the Act to recover compensation from a principal'. If this is correct it is only when compensation under the Act is claimed from a principal or proceedings are taken against a principal to recover that compensation that the substitution takes effect. Hence, for instance, where a worker commences proceedings to recover compensation from a principal the reference to employer in s 8(1) (the work journey provision) should be read as if it were a reference to the principal. That view of the meaning of the section is re-inforced by the definition provision (s 6(1)) in which it is stated that, unless the contrary intention appears, 'proceeding' means 'a claim for compensation or a matter or question incidental to or arising out of a claim for compensation before the court under this Act'. Mr Higgs submitted that the definition of proceeding says nothing about the meaning of the word 'proceedings' in s 14(1) and he emphasised the fact that the definition relates to the singular. He appreciated, however, the normal principle of interpretation that the singular is taken to include the plural and sought to deal with that problem by referring the court to a large number of sections of the Act in which the words 'proceeding' and 'proceedings' were used. He took the court to those sections to demonstrate that where the word was used in its singular form it related to a proceeding in which a claim was made for compensation under the Act and where the word was used in the plural form it was not so confined. I am unable to agree, however,that an examination of those sections bears out the argument or demonstrates the point. For instance, the reference to proceedings in s 6B(4) clearly refers to proceedings brought to recover compensation under the Act. Similar observations may be made about s 9(3B), s 10A and s 17C(3). It is unnecessary to refer to the other sections which were pointed to by counsel for it is clear enough that the distinction between the singular and plural for which counsel argues is not borne out by an examination of the provisions of the Act. Accordingly, counsel was forced to submit that it was possible to discern, in s 14(1), an intention that the word 'proceedings' should not have the defined meaning. Its immediate context, as I have sought to point out, points strongly in favour of the view that the defined meaning applies and I reject that submission. Mr Higgs then raises two further arguments in favour of the construction for which he contends. The first is that if his argument is not right the words 'or proceedings are taken against' in s 14(1) are otiose. It may be that the words 'where compensation is claimed from' are sufficient to effect the apparent statutory purpose and that the additional words were inserted in the sub-section for more abundant caution. But this would not be the first time that apparently unnecessary words had been inserted in an Act for that reason. Although I find it difficult to understand what 6 UNREPORTED JUDGMENTS substantive effect is achieved by adding those words it seems possible that they were included because a number of sections in which the substitution would be effected are concerned with proceedings before the court, that is, the Workers" Compensation Court. Whatever may be the reason for the addition of those words their presence in the Act does not compel a conclusion that the word 'proceedings' has the wider meaning for which the appellant contends. The principal ground upon which Mr Higgs relied is that if the interpretation adopted by Ireland J were correct there was an anomaly in the Act which the legislators could never have intended. I am by no means convinced that an interpretation which limits proceedings in s 14 to proceedings for compensation in the Workers" Compensation Court does lead to the suggested anomaly. However, even if it did I would not regard that as a sufficient reason for giving the word 'proceedings' the wider meaning for which the appellant argues. In my opinion there is no relevant ambiguity, or lack of clarity, in s 14 and there is no reason for giving to the word 'proceedings' in that section any meaning other than one which clearly appears from the words used in the section. The anomaly suggested by Mr Higgs is that there is an intention to be discerned from the Act as a whole that a principal should never be liable to pay more compensation than an employer yet that result would flow in the event that 'proceedings' is construed to relate only to proceedings in the Workers" Compensation Court. The argument is a complicated one but I hope that in summarising it I do counsel no injustice. It was to the following effect — Where a worker recovers damages against his or her employer in respect of a particular injury then that worker will lose the right to claim compensation under the Act in the future in respect of that injury and the total of all compensation payments received by the worker prior to the judgment will be deducted from the award of damages (see s 23(3A)). The position is quite different under s 22 which applies where a worker receives compensation under the Act and recovers damages from another person in respect of the same injury. In its context the phrase 'another person' refers to some person other than the person who paid the worker his or her compensation under the Act. In this event the worker's right to claimcompensation in the future is not expressly affected. The significant point of distinction between s 22 and s 23 is that the worker's entitlement to receive compensation in the future is not expressly affected by the recovery of damages against another person whereas the recovery of damages against the employer brings to an end the worker's entitlement to claim compensation in the future. The difference between these provisions led Mr Higgs to argue that, unless his primary contention was correct, a principal against whom a claim for compensation had not been made could, after the worker had recovered damages against it, find itself exposed to a later claim for compensation under the Act. Insofar as this could not occur where damages had been recovered from an employer it must follow that, in order to avoid a situation in which the principal could be liable to pay more compensation than an employer, the worker's rights in relation to a principal fall to be decided under s 23 and not s 22. There is no doubt that the Act provides different consequences where damages are recovered from some person other than the person who paid the worker compensation, on the one hand, and where damages are recovered by a worker from his or her employer, on the other hand. The distinction, the reason for which is not immediately apparent to me, is that to which I have already referred. And it is also true that there is no express provision in s 22 to the effect of that part URJ CIVIL & CIVIC LIMITED v BREARTON (Clarke JA) 7 of s 23(4) which disentitles a worker who has recovered damages from his or her employer in respect of an injury from maintaining a claim for compensation under the Act thereafter. But that distinction does not necessarily lead to the anomaly suggested by Mr Higgs. Where, as in this case, the worker recovered compensation from his employer and seeks to recover damages from the principal the provisions of s 22 would, prima facie, apply if heeventually recovered damages. Accordingly, provided that the employer had given notice to the principal, it would have a first charge upon the damages to the extent of the compensation which had been paid to the worker prior to the time of judgment. Further, the worker becomes obliged, on recovering damages, to repay to his employer such amount of the compensation which he has received "as does not exceed the amount of those damages recovered from that person" (s 22(1A)(a)). There was debate during the hearing whether the obligation was limited to compensation received prior to the recovery of judgment or whether, bearing in mind that the events which had occurred did not bring to an end the worker's right to receive compensation in the future, there was a continuing obligation upon the worker to repay compensation in the future. The question was posed, for instance, "What effect would the recovery of damages have upon an award under which the worker was receiving, for instance, $100 per week for partial incapacity?" Clearly enough the recovery of damages has no effect on the employer's obligation to continue paying compensation under the award unless and until the award is set aside or varied. Upon that basis it is possible to argue that s 22(1A)(a) obliges the worker to repay amounts received in the future to the extent that the total of the amounts of compensation received does not exceed the amount of the damages recovered. If that is the correct approach then, perhaps, principles of circuity of action would apply and the employer would be relieved of its obligation to pay the compensation at least until the total to which the worker was entitled and would have been paid, if the principle of circuity had not been applied, exceeded the damages recovered. There would be a clumsiness in the application of this approach but nonetheless it is one that is reasonably arguable. Another approach is to construe s 22(1A)(a) as relating only to payments of compensation received prior to the recovery of damages. If that is the correct interpretation of the provision and the worker's right to receive compensation after the recovery of damages was unaffected by the recovery of those damages then those damages would need to be assessed upon a basis which avoided over-compensation (see for instance, Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR 120 at 128-9). The questions raised by this debate are not easy to resolve and insofar as they do not directly arise should await determination on an occasion when they do directly arise. What is, perhaps, more to the point is that there is nothing in s 22 which is directed at a situation where a worker sought to claim compensation from a principal after he or she had recovered damages in respect of the same injury from that principal. That is why, the appellant argues, the principal should be regarded as an employer under s 23 so that the recovery of damages against it would bring to an end any right in a worker to claim compensation from it. If the respondent had been paid compensation by the principal then, as it seems to me, there would be a powerful argument that the substitution, of which s 14 speaks, would take effect. In addition, and this may be an answer to the suggested anomaly, if the respondent sought to recover compensation from the appellant 8 UNREPORTED JUDGMENTS after he had successfully recovered damages from it then it may well be that the appellant would be able to call in aid s 23(4) upon the basis that in respect of the claim for compensation it, in effect, stands in the shoes of the employer. It is unnecessary to resolve these rather difficult questions for it is sufficient for present purposes to reiterate that it is by no means certain that the particular anomaly to which the appellant's counselrefers actually arises. I have, however, referred to some of the complexities in deference to the careful detailed argument of Mr Higgs. In my opinion s 14 is expressed in clear terms and nothing has occurred in this case which would bring the appellant within the provisions of s 23. Accordingly, the proceedings against it are not barred by s 23(3A) and I would dismiss the appeal with costs. In these circumstances it is unnecessary to consider the other submissions because even if the relevant provisions in the Act were applicable in New South Wales, these proceedings would not be statute barred. I should indicate, however, that in the light of the majority decisions of the High Court in McKain vR W Miller & Co (SA) Pty Ltd (1988) 169 CLR 41 and Stevens v Head (High Court, 18 March 1993, unreported), it may be necessary to reconsider this court's decision in Byrnes. Meagher JA. This is an appeal from a decision of Ireland J declining to strike out certain proceedings which the plaintiff, the present respondent, had brought against the defendant, the present appellant. It is agreed that the plaintiff sustained personal injuries on 14 June 1985 when, during the course of his employment in Darwin by a subcontractor, R W. Bass Pty Ltd, scaffolding erected by Ray Pole & Co Pty Ltd, collapsed. At the time of the occurrence, his immediate employer, R W. Bass Pty Ltd, was employed by the appellant Civil & Civic Ltd. On 30 July 1990, the plaintiff commenced proceedings in the Common Law Division of this Court against his immediate employer (R W. Bass Pty Limited) — presumably for failure to install and maintain a safe system of work, and against the present appellant -presumably as an occupier. The appellant brought a cross-claim against the scaffolder Ray Pole & Co Pty Limited (in liquidation). On 3 May 1991, R W. Bass Pty Limited, the plaintiff's employer, by Notice of Motion sought orders that the plaintiff's proceedings be stayed generally or dismissed, and on 14 June 1991 judgment in favour of R W. Bass Pty Limited was entered against the plaintiff. Section 23 of the (now repealed) Workers" Compensation Act (Northern Territory) provided as follows: Section 23 LIABILITY OF THE EMPLOYER INDEPENDENTLY OF THIS ACT 23(1) [Compensation under Act] Except as provided by this Act, a worker shall not be entitled, in respect of personal injury (by accident) arising out of or in the course of his employment to receive compensation or any payment by way of compensation from his employer both independently of and also under this Act. 23(2) [Repatriation Act] If the injury is an injury in respect of which a worker is entitled to receive a pension, other than a service pension, under the Repatriation Act 1920 of the Commonwealth, the worker shall not be entitled to compensation under the provisions of this Act. 23(3) [Recovery through proceedings] Subject to subsection (3A), where personal injury is caused to a worker in circumstances which appear to create a legal liability in his employer to pay damages in respect thereof and the worker has URJ CIVIL & CIVIC LIMITED v BREARTON (Meagher JA) 9 received compensation under this Act, the worker shall be entitled to take proceedings against his employer to recover damages. 23(3A) [Time limit for proceedings] A worker shall not be entitled to take proceedings under subsection (3) unless he commences those proceedings — (a) within 3 years after the date upon which he received payment, or the first payment, of compensation under this Act; or (b) if, on that date, he is under a legal disability or, as a result of the injury, a physical disability that prevents or hinders him from commencing the proceedings, then within 3 years after the date on which the disability ceases. 23(4) [Duplication of damages] A worker who recovers damages (other than damages for pain and suffering or loss of amenities of life in respect of the injury to a resident of the Territory, within the meaning of the Motor Accidents (Compensation) Act, in or as a result of an accident, within the meaning of that Act, that occurred in the Territory) from his employer in respect of an injury shall not be entitled to compensation or any payment under this Act in respect of the same injury and any sum received by him under this Act in respect of that injury prior to the award of the damages shall be deducted from the amount of the damages recoverable from his employer. It is conceded that payments under the Act were made to the plaintiff, initially by his employer R W. Bass Pty Limited, and later by his employer's insurer; that these payments were 'payments' within s 23; and that such payments were made (inter alia) in June and July 1985. No payments have been made by the present appellant. The appellant argues that the plaintiff is precluded from bringing the action which he instituted against it because of the provisions of subsection 3(3A)of s 23 of the Act. That sub-section, in context, provides that where a worker is injured at work in circumstances where he may have a cause of action at law as well as a claim for compensation under the Act, he may pursue the former even if he has recovered some compensation, provided he does so within 3 years of the receipt of the first payment of compensation. On the face of it the appellant's argument must fail because the sub-section imposes a limitation only on actions between a worker and his employer. Here the plaintiff does not seek to sue his employer. Civil and Civic Limited was not his employer at any point of time. It was to meet this difficulty that Mr Higgs, in an argument not lacking in subtlety, submitted that, in effect, a party in the position of the appellant came within the term 'employer' in s 23(3A), because of the provisions of s 14(1) of the Act. That sub-section reads as follows: 14(1) ["'The principal'"] Where any person (in this section referred to as 'the principal'), in the course of or for the purpose of his trade or business, contracts with any other person (in this section referred to as 'the contractor') for the execution by or under the contractor of the whole or any part of any work undertaken by the principal, the principal shall be liable to pay to any worker employed in the execution of the work any compensation under this Act which he would have been liable to pay if that worker had been immediately employed by him; and where compensation is claimed from or proceedings are taken against the principal, then, in the application of this Act references to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earningsof the worker under the employer by whom he is immediately employed." 10 UNREPORTED JUDGMENTS The appellant is certainly a 'principal' within the meaning of s 14(1), but that does not mean that he is for all purposes equiparated with an 'employer'. A 'principal' does not become an 'employer' under s 14 except (i) where compensation is claimed from it, or (ii) 'proceedings' are brought against it; and, on any reasonable reading of the Act, then only for the purposes of compensation proceedings. In the present case, it is agreed that at no stage did the plaintiff claim compensation from the appellant. Nor, I should have thought, has it even brought 'proceedings' against the appellant. In s 6, 'proceeding' (in the singular) is defined as follows: 'proceeding' means a claim for compensation or a matter or question incidental to or arising out of a claim for compensation before the court under this Act;' In Mr Higg's careful argument, it was submitted that the use of the plural term 'proceedings' in s 14(1) precludes the defined meaning of the singular term 'proceeding' applying. Issue was joined on this question by Mr Coombs QC on behalf of the plaintiff. To my mind it does not matter whether the word 'proceedings' in s 14(1) is or is not used in its defined sense. If it is so used, it cannot possibly refer to anything else than statutory Workers" Compensation proceedings; on the other hand, if it is used in its natural sense unaffected byany statutory definition, it still does not refer to any proceedings other than statutory Workers" Compensation proceedings — this flows from the fact that the 'proceedings' referred to in s 14(1) are proceedings which deal with 'amounts of compensation' . It follows that, in the present case, whatever meaning one permits s 6 to give to the word 'proceedings' in s 14(1) cannot have the expansive effect on s 23(3A) for which the appellant argues. This conclusion is sufficient to dispose of the present appeal and lead to its dismissal. But, even if I am wrong in my view that the facts of the present case do not come within the language of s 23, I am of the opinion that the section, being a Northern Territory enactment, cannot apply in New South Wales because the decisions of the High Court in McKain vR W Miller & Co (South Australia) Pty Limited (1992) 66 ALJR 186 and Stevens v Head (unreported, 18 March 1993) require the categorization of s 23 as 'procedural' rather than 'substantive', although this is contrary to what this Court said in Byrne v Groote Eylandt Mining Co Pty Limited (1990) 19 NSWLR 13. In the High Court cases, Byrne's Case is not in terms overruled, although hardly commended. In my view one can only maintain its authority if one invents yet further subtle distinctions in an area of the law already over-burdened with them. I am therefore of the view that the appeal should be dismissed with costs. Handley JA. In this appeal I have had the benefit of reading in draft form the reasons for judgment of the other members of the Court. In my view s 14 of the Workers Compensation Act (NT) does not operate to make the appellant as the head contractor on the building site the deemed employer of the respondent for the purposes of s 23 of that Act. The section makes a principal liable to pay compensation to workers employed by subcontractors as 'if' they had been employed by the principal but does not create any statutory fiction. It maintains the distinction between principal and employer and imposes an equivalent direct liability on the principal in addition to the liability of the subcontractor as employer. This is made clear by the final provisions in s 14(1) which apply where compensation is claimed from or proceedings are taken against the principal. In those circumstances the Act is URJ CIVIL & CIVIC LIMITED v BREARTON (Handley JA) 11 made applicable as if references to employer are read asreferences to the principal. This is only a drafting technique to shorten the legislation and involves no statutory fiction. The question is whether this drafting technique applies to s 23 to create a parallel provision in which principal is substituted for employer throughout. I agree with Clarke and Meagher JJA that s 14(1) does not have this effect in the present case because the respondent did not claim compensation from the appellant as principal or take proceedings against it to recover compensation. However as at present advised I do not think that if the respondent worker had received compensation from the appellant or taken such proceedings against it s 23 would have then applied to the appellant. It seems to me that the drafting technique in s 14(1) is only applied to those sections of the Act which create liability for compensation and provide for its assessment and payment. The relevant language reads 'where compensation is claimed from or proceedings are taken against the principal, then in the application of this Act ... " The drafting technique operates 'in the application of this Act' and this means, I think, in its application to claims for compensation and proceedings for its recovery. On this view the drafting technique does not operate in relation to s 23. Where a principal pays compensation to a worker employed by a subcontractor it is entitled under s 14(2) to be indemnified by the subcontractor employer. Where a worker such as this respondent is injured in circumstances creating a common law liability in the employer s 23 applies without difficulty even if compensation was received in the first instance from the principal. See s 23(3A)(a). Where such a worker is injured in circumstances creating a common law liability in the principal s 22 can apply to adjust the rights of worker, principal andemployer without the need for any amendment effected by the drafting technique in s 14(1). If the principal has paid compensation it should have been indemnified by the employer under s 14(2). The employer will either be indemnified out of the worker's damages (s 22(1A)) or will be entitled to be indemnified by the principal as tortfeasor under s 22(1B). Cases may however arise where a worker is injured in circumstances creating a common law liability in both the employer and the principal. Such a worker may also receive compensation from both. In these circumstances difficulties would arise in attempting to apply s 23 in the same case to both principal and employer. No such difficulty would arise if the principal is within s 22 and the employer within s 23. In any event I agree with Clarke JA that if under the Act a worker's continuing compensation rights are not affected by the recovery of damages from a tortfeasor other than the employer, over-compensation will be prevented either by recoupment under s 22(1A)(a) or by reducing the worker's damages in accordance with the principles applied in Adams v Ascot Foundry (1968) 72 SR (NSW) 120, Hood Constructions v Nicholas (1987) 9 NSWLR 60 and Vanramer Pty Ltd v Higgins (1991) 24 NSWLR 661 at 671. It follows that the limitation provisions in s 23(3A) of the Act do not apply and would not have applied even if these proceedings had been brought in the Northern Territory. Accordingly the decision in Byrnes v Groote Eylandt Mining (1990) 19 NSWLR 13 is not relevant in this case and it is not necessary to determine whether it should be followed. 12 UNREPORTED JUDGMENTS In the light of the recent decision of the High Court in Stevens v Head (18 March 1993, not yet reported) the application of s 23(3A) of the Act to proceedings in this State would appear to turn on whether its provisions have a substantive or procedural operation. Should that question arise it may be necessary to consider whether s 23(1) which appears to have been copied from s 17A of the Commonwealth Employees Compensation Act 1930 as amended has a more limited operation than the majority in Byrnes thought, consistent with the history of such provisions dating back to ss 1 and 6 of the Workers Compensation Act 1906 (UK). The appeal should be dismissed with costs. (1) Appeal dismissed with costs Counsel for the appellant: D J HIGGS/N PERRAM Solicitors for the appellant: MALLESONS STEPHEN JAQUES Counsel for the respondent: J COOMBS QC/C HICKEY Solicitors for the respondent: MARSHALL SHEEHAN and ASSOCIATES