WorkCover Queensland v Eggers & Anor [2025] QDC 183

(b) if WorkCover has paid compensation or damages for an injury sustained by a worker when the employer was in contravention of section 48 in relation to the worker - the amount of the payment made together with a penalty equal to 50% of the payment.

[2] As can be seen, it provides for the recovery of compensation and unpaid premiums in circumstances where, under section 48 of the Act, an employer was obliged to insure. Section 48 relevantly provides:

(1) Every employer must, for each worker employed by the employer, insure and remain insured, that is, be covered to the extent of accident insurance, against injury sustained by the worker for -

(a) the employer's legal liability for compensation; and

(2) The obligation to insure under subsection (1)(b) does not include an obligation to insure for an employer's legal liability for damages for which WorkCover is not authorised to indemnify the employer.

(3) The employer's liability must be provided for -

(a) under a licence as a self-insurer under part 4; or

(4) WorkCover must not issue more than 1 policy for each employer.

(5) However, if the employer is the State, WorkCover may issue 1 policy for each department of government.

[3] The amount claimed in the claim and statement of claim arose from proceedings relating to a claim for workers compensation by a Ms Tindal. The context of that compensation claim, and hearings relating to it, are relevant to this appeal.

[4] Broadly, the defendants were partners in a partnership trading under the business name of Aussie Yachting. WorkCover alleges that on around 3 September 2018, Ms Tindal was a worker (as that term is defined in the Act), employed by Aussie Yachting and the defendants, trading as Aussie Yachting, were an employer within the meaning of section 48 of the Act. Tindal made a claim for workers compensation on about the 13th of September 2018. On or about 21 September 2018, WorkCover made a determination pursuant to the Act to accept Tindal's application for workers compensation (the initial decision).

[5] As provided for by the Act, Aussie Yachting could apply for a review of the initial decision to the Worker's Compensation Regulator (the Regulator). Pursuant to section 542 of the Act, Aussie Yachting subsequently sought a review of the initial decision by application to the Regulator. The Regulator issued its review decision on 11 December 2018, set aside the initial decision and referred the matter back for a fresh decision.

[6] On 11 January 2019, WorkCover made a second decision to accept Ms Tindal's claim and provided reasons (the decision). The defendants, as Aussie Yachting, lodged a second review under section 542 of the Act on 11 April 2019. They raised the following grounds:

(a) Not all the facts and evidence had been considered by WorkCover;

(c) A witness statement of a Ms Coldrake should have been considered; and

(d) The decision was wrong because Ms Tindal's claim, in broad terms, was improper.

[7] On 10 July 2019, the Regulator issued its review decision and confirmed the decision of 11 January 2019. In that decision, the Regulator identified the relevant issues as whether Ms Tindal was a worker and whether she sustained an injury within the meaning of those two terms under the Act. Aussie Yachting appealed that review decision to the Queensland Industrial Relations Commission (the appeal). The appeal lapsed without being determined on the 8th of March 2023. There have been unsuccessful recent attempts to reopen the lapsed appeal.

[8] Pursuant to section 583 of the Act, WorkCover's chief executive may issue certificates stating various matters, including that a specified person has contravened section 48 and how, and that a specified amount is due to be paid by a person who has contravened section 48, and that a specified amount was paid by WorkCover on account of a specified person. Under section 583(5) of the Act, a certificate under the Act is admissible as the certificate it purports to be.

[9] The defendants commenced proceedings in the Magistrates Court in Brisbane in 2024. It did so pursuant to section 580 of the Act which provides:

(a) payable to WorkCover as a premium, additional premium or charge; or

(b) recoverable by WorkCover on any account whatever;

is a debt owed to WorkCover by the person liable to pay the premium, additional premium or charge, or from whom the amount is recoverable.

(2) An amount payable to the Regulator as a levy or additional amount or recoverable by the Regulator on any account whatever, is a debt owed to the Regulator by the person liable to pay the levy or additional amount, or from whom the amount is recoverable.

(3) The Regulator or WorkCover may recover a debt -

(a) on the complaint of the Regulator or WorkCover's chief executive officer under the Justices Act 1886, before an industrial magistrate; or

(4) If, for a contravention of this Act, there exists -

(b) a right to proceed for a penalty as for an offence; the amount may be recovered as a debt even though the proceeding for the penalty has not been taken.

(5) Payment of a penalty does not relieve a person from liability to be assessed and to pay a premium or from liability to pay another amount under this Act.

[10] Most relevant is subsections 580(1) and (3)(b). The effect of those provisions is to authorise WorkCover to recover amounts due, including under section 57, by an action for a debt.

[11] The WorkCover claim in the Magistrates Court was that at the relevant times, Aussie Yachting failed to insure and remain insured in accordance with section 48. That evidence was contained in a section 583 certificate put before his Honour. It is WorkCover's case that between September 2018 and July 2019, WorkCover paid compensation expenses to and on behalf of Ms Tindal in the sum of $30,775.80. That is how the amount came to be calculated and the basis upon which it is alleged by WorkCover in the proceedings below that the defendants are liable to pay it.

[12] The Magistrates Court has power to hear and determine personal actions up to their monetary limit.[1] This sum was within the monetary limit, and thus proceedings were properly commenced in the central registry of the Magistrates Court. They were subsequently transferred to Proserpine, but nothing turns on that for this appeal.

[13] WorkCover filed a claim and statement of claim in fairly brief terms. I am assuming that is a standard form of pleading. There was no matter raised before his Honour, or before me, about the pleading, although the pleading did contain conclusory allegations not linked to specific paragraphs of the pleading and was not particularised in ways that one would have expected. It might be that some thought could be turned to that standard form of pleading.

[14] The Eggers filed a defence, and then an amended defence and counterclaim. The plaintiff then brought an application for summary judgment, or, in the alternative, that the amended defence and counterclaim be struck out.

[15] The matter came before the learned Magistrate on 23 May 2025. The hearing was peremptory. The transcript, I think, rather than his Honour's brief reasons, are of most assistance in understanding what occurred:

HIS HONOUR: Okay. I've read the claimant's statement of claim. I've read the defence. You're not getting summary judgment. I'll be straight up and forward with you. They've pleaded enough in there. It is by way of evidence, but there's enough there to show that they have not an unrealistic defence to the claim.

MS LONG: The basis of the summary judgment application, your Honour, is not so much on the matters that are pleaded in the defence - and your Honour would have seen that the alternative is a strike-out application. It is on the basis ---

MS LONG: It's on the basis that these matters that are raised in the defence are not matters that are capable of being raised within this proceeding, because they ---

MS LONG: --- are all matters that should have been raised ---

HIS HONOUR: Again, I do appreciate that, but they clearly have something they want to put forward to the court as a defence. They're going to get that entitlement. They will get - they'll - the claim and statement of claim, as I see, as I said, is full of evidence, not appropriate pleadings. It will be struck out, but they will be given the opportunity of repleading a proper defence.

MS LONG: Perhaps if your Honour was minded to have a look at the written outline of submissions that I have provided, that I would seek to hand up, in regards to the basis of ---

HIS HONOUR: I'll take your submissions, but I don't think you're reading the room, Ms Long.

HIS HONOUR: They're self-represented. It's WorkCover, a Queensland entity. It does have a statutory entitlement, but you've also got problems with your pleadings.

MS LONG: Your Honour, the basis of the claim is on that - sorry, the basis of the summary judgment application is on the basis that these matters that are raised in the defence and all of the - even if it is properly constituted and pleaded, are matters that should have been raised within review and appeal proceedings in the QIRC, and this Magistrates Court jurisdiction is not bestowed with the jurisdiction to be able to determine those matters.

HIS HONOUR: Okay. They should be entitled to put in a pleading, a proper defence. You can respond to it with a reply, putting them on notice of what you're saying, and then deal with it in a subsequent application. But at the moment, when we're dealing with two self-represented defendants, with substantial materials before the court, on their pleadings, you're not going to get up on a summary judgment application today.

[16] After that exchange, his Honour struck out the amended defence and counterclaim, gave the defendants leave to replead and transferred the matter to the Proserpine Magistrates Court.

[17] The plaintiff appeals his Honour's orders dismissing the application for summary judgment under rule 292 Uniform Civil Procedure Rules 1999 (Qld) (UCPR). The notice of appeal focuses on various articulations of the argument that the Magistrate did not give WorkCover a fair hearing and did not consider whether there was a real question to be tried in respect of the defence, as called for by the relevant rule. Rule 292 provides:

(1) A plaintiff may, at any time after a defendant files a notice of intention to defend, apply to the court under this part for judgment against the defendant.

(a) the defendant has no real prospect of successfully defending all or a part of the plaintiff's claim; and

(b) there is no need for a trial of the claim or the part of the claim;

the court may give judgment for the plaintiff against the defendant for all or the part of the plaintiff's claim and may make any other order the court considers appropriate.

[18] With respect to his Honour, I do think he erred in the way he dealt with that application, even recognising the pressures the Magistrates Court is under on a day-to-day basis. Adopting the most generous view of his Honour's observations in the transcript extract above, his Honour took the view that under no circumstances would he order summary judgment against the litigant in person defendants without giving them an opportunity to replead. However, if the court has before it an application for summary judgment, the court is obliged to turn its mind to the two preconditions to enlivening the jurisdiction, even if it is likely the Court will refuse to exercise the discretion to give judgment. To my mind, that is necessary properly to hear and determine the application. I recognise that a judge might begin such a hearing with the preliminary view as to the outcome based on the pleadings. But the application must be determined on the submissions made on the application and the Court ought not to simply maintain its preliminary view without considering the applicant's submissions. His Honour should have received the submissions and considered them. His Honour's decision to dismiss the application miscarried. It therefore falls to me to reconsider WorkCover's application.

[19] The interesting question in this appeal was whether his Honour was wrong to refuse summary judgment. In my respectful view, he was not.

[20] I have before me extensive submissions from Ms Long for WorkCover. They certainly identify the existence of an adequate alternative remedy for challenging the key questions that are raised in this proceeding, that is, whether Aussie Yachting was an employer, whether Ms Tindal was a worker and whether she was injured in the way she says. I am willing to assume, for the purpose of the application, that one or more of those matters was canvassed in the two hearings before the Regulator, and that they could have been raised in the appeal to the Industrial Relations Commission available under the Act.

[21] It was submitted by WorkCover that the system of review provided by the Act meant that the defendants were prevented as a matter of law from litigating those questions again in the Magistrates Court in civil proceedings to recover the debt. The difficulty is that there was no statutory provision or legal principle which gave effect to that submission.

[22] What Parliament did was to say that those sums can be recovered as a debt. To plead the debt, WorkCover must plead the facts that give rise to that cause of action under the statute. The statement of claim does so. It includes allegations that Ms Tindal was a worker. Prima facie, the defendants are entitled to defend to those allegations of fact. To prevent them doing so by the Act, it is necessary to find a statutory provision which in express terms or by necessary intendment has the consequence that they cannot dispute those allegations or a principle of law that imposes such a prohibition.

[23] Ms Long concedes that there are no express terms in the Act which prevents the defendants defending as they have, and no terms are identified which, to my mind, give rise to a necessary implication (which must be derived from the text of the statute). An example that Ms Long helpfully raised was s. 71 of the Queensland Building and Construction Commission Act 1991 (Qld), which identifies available defences. The courts have been able to infer that such a provision means that other grounds are not available as a defence. However, there is nothing like s. 71 in the Act, nor is there any statutory provisions facilitating proof of statutory debts like those in the taxation legislation.

[24] In those circumstances, it seems to me that the plaintiff is left to the general law to find a principle which prohibits the defendants relitigating matters dealt with by the Regulator. The general law does have a solution, the law of judgment estoppel. An issue estoppel might apply if the various conditions for an issue estoppel to arise in relation to specific allegations of fact made in the defence are made out. It is also possible that the extended doctrine of judgment estoppel in the abuse of process area might apply if, strictly speaking, an issue estoppel for some reason does not arise. Other judgment estoppel principles might assist. However, such principles must be invoked by pleading them. They do not automatically arise. They are not presently pleaded by WorkCover by way or reply or at all. Accordingly, there is no basis to enter summary judgment against the defendants, even if issue estoppels do arise (which remains to be established).

[25] Ms Long correctly identifies that in the regular litigation that WorkCover engages in to recover debts under s. 48 of the Act, judgment estoppels are an inefficient way of dealing with previously decided issues of fact, but if that is so (or if no estoppels arise), it is a matter for Parliament.

[26] There was a submission that the review process under the Act was an adequate remedy in respect of a dispute about those issues raised in the defence which correlate to those considered by the Regulator. Adequate alternative remedy is, of course, the language of judicial review. Suing for a statutory debt is not a judicial review proceeding.

[27] The same point arises in respect to the cases Ms Long identified relating to the seeking of declarations. Of course, a declaration is discretionary. If you are seeking a declaration about a matter that has been or could be determined by a court-like process in a statute, it makes perfect sense a court might refuse the declaration on discretionary grounds.

[28] But this is not a claim for a declaration. Parliament has created a statutory debt. WorkCover must therefore allege the facts which make out the elements that give rise to that debt on the proper construction of the statute. The defendant is entitled to defend to that pleading by admitting, not admitting or denying those facts, unless WorkCover can find some legal basis that prevents them doing so.

[29] Accordingly, his Honour's short comment that the issues WorkCover raised are issues for reply is consistent with the position I have come to on a careful consideration of the whole of WorkCover's submissions. That is, the plaintiffs plead, the defendants file their defence, and then, in the orthodox way, judgment estoppels or related questions are raised in the reply, if they arise at law.

[30] That is not mere form. Judgment estoppels are not always straightforward propositions. There are several factual pre-conditions to a judgment estoppel and a number of factual considerations that are required to be established to make them good. They also require a sufficient similarity between the issue determined and the issue raised in the later proceedings.

[31] For those reasons, although I think his Honour erred procedurally in the manner in which he considered the application, I am satisfied that his Honour was correct to dismiss the summary judgment application. His Honour's other orders, are not the subject of appeal in any event. For those reasons, I dismiss the appeal.

[32] I make no order as to costs. The reason for that is that the Eggers are acting for themselves on the appeal, and I could not award costs in those circumstances as a matter of law.

[33] Additionally, Ms Long of counsel directed my attention to division 1A of chapter 13 of the Act, dealing with reviews and appeals. Section 561 provides for an appeal to the Industrial Court. It relevantly provides:

(1) A party aggrieved by the industrial magistrate's or the industrial commission's decision may appeal to the industrial court.

(2) The Industrial Relations Act 2016 applies to the appeal

(3) The appeal is by way of rehearing on the evidence and proceedings before the industrial magistrate or the industrial commission, unless the court orders additional evidence be heard.

[34] This section provides an appeal from the Industrial Magistrate or the Industrial Commission for a party aggrieved by a decision of either of those bodies of the kind identified in section 560A of the Act. Ms Long raised as a possibility that section 561(4), which provides that the court's decision is final, might be relevant to whether issue estoppels arise. I do not presently consider that section has an implication for whether issue estoppels would arise from the decisions of the Commission or the Industrial Magistrates Court. It seems to me the purpose of that provision is to make express what is implied without it, and that is there can be no appeal from the decision of the Industrial Court. A similar provision appears in s. 169(2) Domestic and Family Violence Prevention Act 2012 (Qld). It has no implications for the issues raised in this case.

[1] Magistrates Courts Act 1921 (Qld) s 4.