District Court New South Wales Medium Neutral Citation: Rooney v The Workers' Compensation Dust Diseases Board of NSW (No 2) [2014] NSWDC 54 Decision date: 05 March 2014 Before: Cogswell SC DCJ Decision: (1) Appeal allowed. (2) Set aside decision of the Defendant to decline to vary the compensation payable. Catchwords: CIVIL LAW - Appeal - workers' compensation - dust diseases - application to vary compensation payable under Award - adjustment of benefits and weekly payments - form of order to dispose of successful appeal against Board's decision - whether judgment debt can be entered against Board - whether interest payable. Legislation Cited: Workers' Compensation (Dust Diseases) Act 1942 (NSW), ss 6(2), 8(1), 8I. Workers' Compensation Act 1987 (NSW). Cases Cited: Groves v Lord Wimborne (1898) 2 QB 402. Mallinson v The Scottish Australian Investment Company Limited [1920] HCA 51; 28 CLR 66. Re Coldham; Ex parte Brideson [No 2] [1990] HCA 36; 170 CLR 267; 94 ALR 481. Shepherd v Hills (1855) 11 Exch 55; 156 ER 743. Workers' Compensation (Dust Diseases) Board v Veksans (1993) 32 NSWLR 221. Category: Principal judgment Parties: Sinead Rooney (Appellant) Alana Rooney (Appellant) Sean Rooney (Appellant) The Workers' Compensation Dust Diseases Board of NSW (Respondent) Representation: Counsel: S Robertson (Appellants) J L Sharpe (Respondent) File Number(s): RJ00348/13 Judgment 1The late Anna Rooney's children appealed to the District Court from an unfavourable decision of the Workers' Compensation Dust Diseases Board. On 6 November 2013 I found in their favour and allowed their appeal. But there were other issues which still divided the parties. 2The first is the appropriate formal order that I should make to put my finding into effect. The other two are whether I can give a judgment in debt against the Board in favour of the children and, if so, whether I can order the Board to pay interest on that judgment debt. 3Again I record my appreciation to both counsel, Mr S Robertson for the plaintiffs and Mr J L Sharpe for the defendant, for their very helpful written and oral submissions. 4I will first turn to the question of the formal order. Section 8I of the Workers' Compensation (Dust Diseases) Act 1942 (NSW), which I will call the Act, provides for the appeal I heard from the decision of the Board. That section gives me "jurisdiction to hear and determine the appeal" (s 8I(1)(d)). It says no more about what orders I should make in determining the appeal and goes on to provide by subs 3(b) that the board "shall give effect to the decision on such an appeal." 5Fortunately the Court of Appeal has considered what kind of appeal this section has provided for. In Workers' Compensation (Dust Diseases) Board v Veksans (1993) 32 NSWLR 221 Handley JA, with whom Sheller JA agreed, said at 238F that the primary judge in that case - who was exercising the same jurisdiction as I am in the relevant respects - "was called upon to exercise a jurisdiction which was original, which authorised a fresh hearing, and which required him 'to determine the matter on the evidence and law applicable as at the date of the curial proceedings' being 'bound to make (his) own decision on the evidence before (him)'". Handley JA was quoting from the High Court's judgment in Re Coldham; Ex parte Brideson [No 2] [1990] HCA 36; 170 CLR 267; 94 ALR 481 at 273 - 274. Handley JA later said at 242B that on the view the primary judge had taken in that case "he should have made orders allowing the appeal, setting aside the certificate appealed against, and substituted a positive certificate." 6Mr Sharpe says that in this case I should simply set aside the award of the Board. I do not agree. The Board's decision appealed from is a refusal to vary the award. I think I have to set aside that decision of refusal, then make my own decision on the variation application. I have already found that the children are right in arguing that they should receive compensation at the higher rates so that the award should be varied to reflect that. Accordingly I should grant their application for such a variation. I accept Mr Robertson's argument to this effect. 7Mr Robertson helpfully provided a proposed form of orders to give effect to his submission, if successful. In his attachment A to his written submissions on this issue, which became MFI 7, I think proposed orders 1 and 2 comply with the Court of Appeal's approach in Veksans, and correctly encapsulate what I should do in this case. In due course I will make those two orders. 8I will now turn to the question of whether I can give a judgment in debt against the Board in favour of the children. Mr Robertson relies upon what is known as the rule in Shepherd v Hills (1855) 11 Exch 55; 156 ER 743. The High Court applied that rule in Mallinson v The Scottish Australian Investment Company Limited [1920] HCA 51; 28 CLR 66. In the judgment of the Court, delivered by Knox CJ, his Honour said at 70 the following - "The rule applicable here is stated in Shepherd v. Hills as follows, viz., 'Wherever an Act of Parliament creates a duty or obligation to pay money, an action will lie for its recovery, unless the Act contains some provision to the contrary.'" Mr Robertson, at [23](b) and (c) of his written submissions, argues that the Act "creates a duty or obligation on the Board to pay money to the Children at the prescribed rates" and "does not contain a 'provision to the contrary' for the purposes of the rule in Shepherd v Hills". 9I think Mr Robertson is clearly right that s 8(1)(b) of the Act lays an obligation on the Board to pay money to the children. But what is not so clear is whether the Act contains a provision to the contrary. There is no express provision to the contrary, but that does not conclude the matter. 10Knox CJ gives this question close consideration. Over 70 - 71 his Honour said the following - "In cases in which the statute contains no express denial of the right to bring an action, the proper course to adopt in order to determine whether it contains 'some provision to the contrary' within the meaning of the rule stated above is to consider whether it appears from the whole purview of the Act that it was the intention of the Legislature that the remedy provided should be a substitute for the right of action which would otherwise exist; and in determining this question it is material to consider whether the obligation imposed by the Act was designed to benefit a particular class of persons (e.g., employees) and to compel the employers to perform certain duties for their benefit ... It is also material to consider whether the provision made by the Act for compelling obedience to its commands is in the nature of a penalty for disobedience or in the nature of compensation to the person whose rights are affected by the failure to perform the obligations imposed by the Act." I have omitted his Honour's references to authority. The legislation being considered by the High Court was industrial legislation providing for a minimum wage. That explains some of his Honour's references. 11But applying the High Court's guidance in that passage, the obligation to pay compensation in this case was designed to benefit a particular class of persons, namely dependents of the person who has died in prescribed circumstances (see s 8(1)(b) of the Act) and the Board is compelled by the Act to pay them (s 6(2)(a)) their entitled compensation (s 8(1)(b)). The provision made by the Act is not in the nature of a penalty for disobedience but compensation for the entitled beneficiaries. 12Knox CJ went on to consider whether the legislation provides a remedy for non-performance of the obligation. Because Knox CJ attended in some detail over 71 - 72 to the material considerations for determining this question it is appropriate to extract the following passage from his Honour's judgment, again omitting references to authority - "I have equally no doubt that, where in a statute of this kind a remedy is provided in cases of non-performance of the statutory duty, that is a matter to be taken into consideration for the purpose of determining whether an action will lie for injury caused by non-performance of that duty, or whether the Legislature intended that there should be no other remedy than the statutory remedy; but it is by no means conclusive or the only matter to be taken into consideration for that purpose. If it be found that the remedy so provided by the statute is to enure for the benefit of the person injured by the breach of the statutory duty, that is an additional matter which ought to be taken into consideration in dealing with the question whether the Legislature intended the statutory remedy to be the only remedy. But again, the fact that the Legislature has provided that that remedy shall enure, or under some circumstances shall enure, for the benefit of the person injured, is not conclusive of the question, and, although it may be a cogent and weighty consideration, other matters also have to be considered." I should add here that his Honour, in the entire passage, was quoting from the judgment of Vaughan Williams LJ in Groves v Lord Wimborne (1898) 2 QB 402 at 415-416. Knox CJ went on to observe that among the "'other matters' that have to be considered is the question whether the remedy provided is coextensive with the right given by the Act." 13If I follow Chief Justice Knox's adoption of the "proper course to adopt" in examining the Act then the following seems to me to be the case. (a)The Act provides an entitlement to compensation for beneficiaries and its commands are not a penalty to be imposed on the Board. (b)The Act provides a remedy for non-performance of the Board's obligations. If the beneficiary or the Minister is dissatisfied then they have a statutory right to appeal and this Court re determines the matter afresh as if it was the Board. The Board is in turn obliged to "give effect to the decision on such an appeal." (c)That remedy and appeal is to "enure for the benefit of the person injured by the breach of the statutory duty." That is regarded by adoption by Knox CJ as a "cogent and weighty consideration." (d)The remedy is coextensive with the right. The right is to be paid compensation by the Board, and the Board is compelled to give effect to any appeal determination against its failure to pay such compensation. 14I would conclude from those factors that, in the words of Knox CJ at 71, "it was the intention of the Legislature that the remedy provided should be a substitute for the right of action which would otherwise exist". It follows, in my opinion, that the Act contains, I infer, an intention to the contrary of the rule in Shepherd v Hills. Accordingly, in my opinion I cannot give judgment in debt in favour of the children against the Board. 15I should add for completeness that, if I am wrong, it seems to me that for the reasons provided in Mr Robertson's written submissions pre-judgment interest would be payable. 16Accordingly I make the following orders - (1)Appeal allowed. (2)Set aside the decision of the Defendant made on 19 April 2013 (and communicated to the Plaintiffs by letter dated 23 April 2013) to decline to vary the compensation payable under the award (Award) made by the Defendant in favour of the Plaintiffs and, in lieu thereof, vary the Award by: (a) omitting the sum of $126,900 and replacing it with the sum of $433,650; and (b) omitting the weekly compensation sum of $63.40 and replacing it with the sum of $110.20 (as adjusted from time to time in accordance with Division 6 of Part 3 of the Workers' Compensation Act 1987 (NSW)). HIS HONOUR: I think that's it, am I right? ROBERTSON: Costs, your Honour, point 5 of the document. HIS HONOUR: Yes, tell me about costs. ROBERTSON: No argument was put against me on the last hearing that I should not receive costs in any event. Substantive success has been achieved by my client on the matter. There is no reason for any order to be made other than costs following the event. HIS HONOUR: Yes. Ms Duncalf, I don't think there is any reason I can think of that an ordinary order for costs wouldn't follow. DUNCALF: Yes, your Honour. No, your Honour, I don't believe there is any reason why, your Honour. HIS HONOUR: No. DUNCALF: It's a matter for your Honour. ROBERTSON: The only other order is whether or not your Honour should dismiss my application for orders in debt. HIS HONOUR: Yes, thank you, just let me come to that. (3)Defendant to pay Plaintiffs' costs of these proceedings. And you had filed, was it MFI 11?. No. ROBERTSON: There was a further amended summons that I filed during the course of the first hearing and so that's in effect the operative summons and that included prayers for the relief in the nature of debt, and your Honour will recall that Mr Sharpe took in effect a jurisdictional point and I sought to outflank that by saying, well, if your Honour can't deal with that in the residual jurisdiction your Honour can do it in the general jurisdiction. HIS HONOUR: What is the order you're seeking now that I should-- ROBERTSON: Your Honour should probably formally dismiss what, I think, was paragraph 3A of the further amended summons that I filed in court on the first occasion; that would seem to follow from your Honour's reasons. Of course, I don't seek that order, I just accept that it follows from your Honour's reasons. HIS HONOUR: No, I think it's appropriate to draw my attention to that, thank you. ROBERTSON: I misled your Honour before, it was prayer 2A of the further amended summons that was filed in court-- HIS HONOUR: There is a further amended summons that-- ROBERTSON: --during the course of the first hearing. HIS HONOUR: Yes, that was last year. ROBERTSON: It was. HIS HONOUR: Remind me, because I probably left that summons in chambers, what do you propose is the order? ROBERTSON: I think the appropriate order in light of your Honour's reasons is an order dismissing paragraph 2A of the further amended summons filed in court in the course of the first hearing which-- DUNCALF: It was 11 October, your Honour. HIS HONOUR: Thanks Ms Duncalf. ROBERTSON: That was the application of the order in debt and for the pre judgment interest. HIS HONOUR: I think it's order 4. (4)I dismiss paragraph 2A of the Further Amended Summons filed in court on 11/10/13. ROBERTSON: May it please the court. HIS HONOUR: If I find having looked at the original that that's not appropriate then my associate will get back in touch with you and we'll see if we can sort it out, but I'm sure it's right. Is there anything else? ROBERTSON: No, your Honour. DUNCALF: No, your Honour. ********** 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: 22 May 2014