Patricia Jane Cunningham-Beattie v Groote Eylandt Mining Company Pty. Ltd [NTR]

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: Asche C.J.
• Judgment Date: 10 March 1989
• Docket Number: No. 690 of 1988
• Date: 10 March 1989

(1989) 60 NTR 1

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

Asche C.J.

No. 690 of 1988

Patricia Jane Cunningham-Beattie

and

Groote Eylandt Mining Company Pty. Ltd.

Counsel for Appellant: J. Waters

Counsel for Respondent: T. Riley

Cases Applied:

Chang Jeeng v Nuffield (Australia) Pty Ltd (1959) 101 CLR 629

Kraljevich v Lakeview and Star Ltd (1945) 70 CLR 647

Ogden Industries Pty Ltd v Lucas (1967) 116 CLR 537

Re Athlumney: Ex Parte Wilson (1898) 2 QB 547

Cases cited:

Blair v Curran (1939) 62 CLR 464

Egan v City of Northcote (1973) 47 ALJR 299 (PC)

Fisher v Hebburn Ltd (1960) 105 CLR 188

Geraldton Building Co Pty Ltd v May (1977) 136 CLR 379

Holmes v Bradfield RDC (1949) 2 KB 1

Jackson v Goldsmith (1950) 81 CLR 446

Maxwell v Murphy (1957) 96 CLR 261

Somodaj v Australian Iron Steel Ltd (1961) SR (NSW) 305

Sunshine Porcelain Potteries Limited v Nash (1961) 104 CLR 639

Appeal — From decision of Work Health Court — question of law — whether legislation correctly construed as allowing only those with a subsisting cause of action to pursue claim under Work Health Act

Statutory Interpretation — Provision in repealing Act — existing rights may be enforced under either repealed or repealing Act — whether claims unsustainable under former Act can be pursued under Work Health Act — whether provision creates rights retrospectively — S.189(2) Work Health Act 1987

JUDGE1

1 This is an appeal from the decision of the Chief Stipendiary Magistrate sitting as a Magistrate of the Work Health Court.

2 An appeal to the Supreme Court from the Work Health Court can only be on a question of law (s. 116(1) of the Work Health Act), but there is no doubt that a question of law is involved here and it was not contended otherwise by the respondent.

3 The question of law involves the interpretation of s. 189 of the Act. The point is a narrow one but of wide ranging significance if the interpretation contended for by the appellant is correct.

4 The appellant's case is that from January 1980 she was the de facto wife of Charles McDonald Beattie who died on 1 August 1984 as the result of an accident which occurred in the course of and within the scope of his employment. The appellant made no claim then under the existing Workers' Compensation Act because she was advised that she would not qualify, since she did not come within the definition ‘member of the family’, which, so far as she was concerned, meant that she had then to establish that she was ‘a woman who for not less than three years immediately prior to his death or incapacity was wholly or mainly maintained by the worker and who, although not legally married to him, lived with him as his wife on a permanent and bona fide domestic basis’. (See s. 6 of the Workers' Compensation Act). Since, at the time of his death she was herself in employment it was no doubt considered that she would have difficulty in establishing that she was ‘wholly or mainly’ maintained by the deceased.

5 The Work Health Act came into force on 1 January 1987 and the Workers' Compensation Act was repealed (see s. 188 of the Work Health Act).

6 The new provisions are significantly different so far as de facto spouses are concerned. S. 53 of the Work Health Act provides:-

‘COMPENSATION IN RESPECT OF INJURIES

Subject to this Part, where a worker suffers an injury within or outside the Territory and that injury results in or materially contributes to his —

• (a) death;

• (b) impairment; or

• (c) incapacity,

there is payable by his employer to the worker or the worker's dependants, in accordance with this Part, such compensation as is prescribed.’

7 S. 49 defines a ‘DEPENDANT’ in relation to a worker as, inter alia, a ‘spouse’, ‘who was wholly or in part dependent on his earnings at the date of his death or who would but for the worker's incapacity due to the injury resulting in his death, have been so dependent’. The same section defines a ‘spouse’ to include:

‘(a) a person of the opposite sex to the person, who is not legally married to the person but who, immediately preceding the relevant time, had ordinarily lived with the person as the person's husband or wife, as the case may be, on a permanent and bona fide domestic basis.’

8 The three most significant changes so far as de facto spouses are concerned are:-

1. The expression ‘spouse’ replaces the expression ‘woman’ and therefore allows a de facto partner of either sex to claim as a dependent.

2. A de facto spouse does not have to establish a three years cohabitation period. It is sufficient if cohabitation existed immediately prior to the other spouse's death or incapacity resulting in death.

3. A de facto spouse need not show that he or she was wholly or mainly maintained by the worker at the relevant time, but rather that he or she was wholly or in part dependent on the earnings of the worker at the date of the worker's death or incapacity resulting in death.

9 Although the question of fact is not before me, Mr Waters, for the appellant, has indicated that, subject to my determining the question of law in favour of his argument, he will seek compensation for his client on the basis that she was at the time of the deceased's death a ‘spouse’ who was ‘in part’ dependent on the deceased's earnings; anticipating, by reason of the changed definitions, a greater prospect of success than if he had to establish that she was ‘wholly or mainly maintained’ by the deceased at the relevant time.

10 So far as the appellant is concerned, therefore, the question is whether she can now maintain a claim under the Work Health Act that she may not previously have been able to maintain under the repealed Workers Compensation Act.

11 S. 189 of the Work Health Act reads as follows:-

‘CLAIM, andc., BEFORE OR AFTER COMMENCEMENT OF ACT

(1) Where a cause of action in respect of an injury to or death of a person arising out of or in the course of his employment arose before the commencement of this section, a claim or action (including a claim or action at common law) in respect of that injury or death may be made, commenced or continued after the commencement of this section as if this Act had never commenced and for that purpose the repealed Act shall be deemed to continue in force.

(2) Notwithstanding subsection (1), a person may claim compensation under this Act in respect of an injury or death referred to in that subsection and on his so doing this Act shall apply as if the injury or death occurred after the commencement of this section, and subsection (1) shall have no effect.’

12 The learned Chief Stipendiary Magistrate was of the view that the appellant could only make out an application under s. 189(2) if she could establish a subsisting cause of action under the earlier Workers Compensation Act.

13 Mr Waters disputes this view. He submits that the expression ‘cause of action’ does not appear in s. 189(2) and it is neither necessary nor appropriate to import it. He argues that the two sub-sections allow alternative approaches to workers or dependants claiming compensation in respect of injury or death of a worker occurring before the commencement of the Work Health Act and arising out of or in the course of employment. The applicant may either elect to commence or continue a claim as if the Work Health Act had not been passed, and make out the appropriate qualifying circumstances under the repealed Act and seek the appropriate benefits under that Act. That is s. 189(1). Or the applicant may elect to proceed under the Work Health Act and qualify for and seek the benefits there set out, but without the necessity of establishing a prior cause of action. That is s. 189(2).

14 Mr Riley for the respondent says that if that is the interpretation to be put on s. 189(2) rather extraordinary results will follow. For if the meaning is simply that a person may now claim compensation in respect of an injury or death arising out of or in the course of employment which occurred before the commencement of the Work Health Act, then countless claims not sustainable under the repealed Act can be made by any person who can now bring himself or herself within the above description even if the event relied on took place many years earlier. Worse still, he suggests, the interpretation put forward by Mr Waters would mean that a person who had already received compensation under the repealed Act could claim again and receive a further award under the new Act. For under that interpretation a person claiming under sub-section (2) of s. 189 need not base the claim upon any earlier cause of action either subsisting or concluded, but need only establish an injury or death occurring before the commencement of the Work Health Act and which arose out of or in the course of employment. I think, however, that the latter argument goes too far. It would be common ground between Mr Riley and Mr Waters that the basis of any claim under either Act would have to be that an injury arose out of or in the course of employment. That issue, once determined between the same parties, raises what Williams J. in Jackson v Goldsmith (1950) 81 CLR 446 at 460 refers to as

‘a form of estoppel by res judicata which is often referred to as issue estoppel and can be pleaded in bar whenever in a proceeding of a court of competent jurisdiction between the same parties or their privies an issue has been once taken and found. Such an issue is then concluded between the parties taking it and their privies according to the finding thereof so as to estop the parties from again litigating that fact once so tried and found. Everest and Strode in the Law of Estoppel 3rd Ed. (1923) p 52, “Nemo debet bis vexari”’.

15 Fullagar J. in the same case considered the rule was founded more on public policy than estoppel, being based on the two well known principles that there should be an end to litigation...