Abu-Ali v Martin-Brower Australia Pty Ltd
[2017] NSWWCCPD 25
•31 May 2017
| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Abu-Ali v Martin-Brower Australia Pty Ltd [2017] NSWWCCPD 25 | |
| APPELLANT: | Walid Abu-Ali | |
| RESPONDENT: | Martin-Brower Australia Pty Ltd | |
| INSURER: | Allianz Australia Workers Compensation (NSW) Limited | |
| FILE NUMBER: | A1-4314/16 | |
| ARBITRATOR: | Mr B Batchelor | |
| DATE OF ARBITRATOR’S DECISION: | 5 December 2016 | |
| DATE OF APPEAL DECISION: | 31 May 2017 | |
| SUBJECT MATTER OF DECISION: | Section 352(3) of the Workplace Injury Management and Workers Compensation Act 1998; assessment of permanent impairment in respect of secondary psychological injury, for the purposes of the definitions of ‘worker with high needs’ and ‘worker with highest needs’ in s 32A of the Workers Compensation Act 1987 | |
| PRESIDENTIAL MEMBER: | Deputy President Michael Snell | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Carroll & O’Dea Lawyers |
| Respondent: | Hall & Wilcox | |
| ORDERS MADE ON APPEAL: | 1. The appeal cannot be brought as the monetary thresholds in s 352(3) of the 1998 Act are not satisfied, and there is no right of appeal. | |
INTRODUCTION
This matter raises an issue regarding whether a worker is entitled, for the purposes of an assessment of permanent impairment to determine whether he is a worker with high or highest needs, to be referred for an assessment of permanent impairment in respect of a secondary psychological injury.
BACKGROUND
Walid Abu-Ali (the appellant) suffered injury to his elbows due to the nature of his work with Martin-Brower Australia Pty Ltd (formerly known as McKey Distribution Pty Ltd) (the respondent) as a forklift driver and picker, deemed to have occurred on 5 December 2006. He recovered lump sum compensation in respect of two per cent whole person impairment (left and right upper extremities) pursuant to an agreement under s 66A of the Workers Compensation Act 1987 (the 1987 Act) dated 8 September 2008.
In a Certificate of Determination dated 1 March 2012 (amended 12 March 2012), in proceedings no 10420/11, there was (amongst other orders) a consent award for the respondent on a claim for primary psychological injury.
Dr Lee, psychiatrist, in a report dated 27 November 2013, assessed the appellant as suffering 50 per cent whole person impairment, in respect of psychological injury. The material includes s 74 notices issued by the respondent’s insurer dated 17 March 2014 and 17 September 2014, denying liability on a claim for 50 per cent permanent impairment in respect of “primary psychological injury”. These notices stated that the evidence indicated that the appellant’s “psychological injury arose secondary to your physical injury”, and compensation was not payable “pursuant to section 65A(1)” of the 1987 Act.
The appellant brought proceedings no 6922/15, claiming lump sum compensation in respect of primary psychological injury. In a determination dated 9 March 2016 a Commission Arbitrator made an award in the respondent’s favour, finding that the issue of whether there was a primary psychological injury had been conclusively determined in the respondent’s favour, by the 2012 Consent Orders.
The current proceedings seek referral of the appellant to an Approved Medical Specialist (AMS) to assess whether there is a degree of permanent impairment of more than 20 per cent (‘worker with high needs’) or more than 30 per cent (‘worker with highest needs’). Such workers potentially have a greater entitlement to benefits. The pleaded injury is on 5 December 2006, and is described in the Application for Assessment as “Injury to the left and right upper extremities and secondary psychiatric/psychological injury”. The respondent opposes the referral “in respect of secondary psychological injury”. In its Response it says that the appellant is “precluded from seeking an assessment of impairment for such injury, pursuant to sections 32A and 65A” of the 1987 Act. Section 322A of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) was not an issue in the current matter, nor was s 66(1A) of the 1987 Act.
The matter was listed for arbitration hearing on 14 November 2016. Mr Morgan appeared for the appellant and Mr Flett for the respondent. No oral evidence was called. The Arbitrator heard argument on what was essentially a legal issue, and reserved his decision. He made orders for the lodgment of written submissions by both parties, going to the order for referral which the appellant sought, and the date of injury relied on, the appellant by 21 November 2016 and the respondent by 28 November 2016. It does not appear that any submissions were lodged pursuant to these orders. A Certificate of Determination, accompanied by reasons (the reasons), was issued on 5 December 2016.
Put simply, the Arbitrator concluded that the definitions of a worker with ‘high’ or ‘highest’ needs involve assessment of permanent impairment, for the purposes of Pt 3 Div 4 of the 1987 Act. Section 65A(1) (which is found in Pt 3 Div 4) provides that no compensation is payable in respect of permanent impairment that results from a secondary psychological injury. Regard cannot be had to such permanent impairment in assessing whether a worker falls within the definitions of a worker with ‘high’ or ‘highest’ needs. A dispute about the level of permanent impairment, resulting from secondary psychological injury, is not a ‘medical dispute’ within the meaning of s 319(c) of the 1998 Act.
The Arbitrator struck out the appellant’s Application for Assessment.
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to time as found in the provisions of s 352(4) of the 1998 Act have been met.
Section 352(3) of the 1998 Act
The requirements of s 352(3) relating to quantum are more problematic. Section 352(3) of the 1998 Act provides:
“(3) There is no appeal under this section unless the amount of compensation at issue on the appeal is both:
(a) at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.”
On the face of it, there is no compensation at issue on the appeal. The only order sought in the Application for Assessment is referral to an AMS for “[a]ssessment as to whether the degree of permanent impairment is more than 30%”, or more than 20%. The Arbitrator did not deal with any application for the award of compensation; if the appeal succeeds, no order for the payment of compensation will be made.
The appellant made submissions going to this issue in the Application to Appeal Against Decision of Arbitrator lodged on 23 December 2016, although these submissions were not repeated in the Amended Application lodged on 10 February 2017. In this decision, references to the appellant’s grounds and submissions are to those in the Amended Application, except for references to the appellant’s submissions on the threshold issue on quantum, which are to the earlier document. The appellant’s submissions on s 352(3) acknowledge that “the amount of compensation at issue on appeal does not on its face satisfy the threshold requirements of section 352(2) [sic, 352(3)]”.
The appellant submits:
“The [appellant] is a current recipient of weekly compensation benefits and was an existing recipient following the 2012 amendments. Accordingly the [appellant] will lose his entitlement to ongoing weekly compensation benefits unless he is found to meet the definition of a worker with high needs or highest needs. The threshold requirements are consequently met, noting that our client’s future entitlements, if found to be a worker with high needs or highest needs (section 352(2) WIM Act) [sic].”
The respondent did not concede the threshold issue, but made no submissions going to it.
The appellant submits that, although no compensation was claimed before the Arbitrator, or is directly at issue on this appeal, the relevant threshold is satisfied because of the consequential effect of the order sought. If the order for referral to an AMS was to be made, and an AMS then assessed permanent impairment at greater than 20 or 30 per cent, the appellant (if otherwise entitled) would potentially be entitled to greater compensation (such as weekly payments and medical expenses) thereafter.
It has repeatedly been held that Presidential appeals against decisions of Arbitrators, in Applications to Resolve Workplace Injury Management Disputes pursuant to Ch 3 of the 1998 Act, do not satisfy the requirements of s 352(3). In NSW Department of Education and Communities v Colefax [2012] NSWWCCPD 63 the President Keating DCJ at [22]-[24] said:
“22. The appellant’s submission that the issues the subject of this appeal could potentially involve monetary amounts greater than $5,000 because Mrs Colefax has not been able to derive her pre-injury income of approximately $900 per week as an ESL teacher is rejected. The application before the Commission does not involve a dispute as to the worker’s entitlement to weekly compensation and there has been no determination made by the Commission on that issue.
23. In circumstances where there is no monetary award made by the Senior Arbitrator the threshold question is to be determined by reference to the amount of the claim as particularised by the applicant: Grimson v Intergral Energy [2003] NSWWCCPD 29 at [30]. For the reasons that I have indicated in this case there was no amount of compensation claimed in the Application, hence there is no amount of compensation ‘at issue’ on the appeal and the thresholds in s 352 of the 1998 Act have not been met.
24. This reasoning has been consistently applied in the Commission in: Sullivan v Illawarra Newspapers Holdings Pty Ltd [2006] NSWWCCPD 135; Hunter Area Health Service v Gilbey [2006] NSWWCCPD 136; Department of Community Services v Hickey [2006] NSWWCCPD 320, and Railcorp v Lam Luu [2010] NSWWCCPD 44.”
In Fletchers International Exports Pty Limited v Regan [2004] NSWWCCPD 7 (Regan) Fleming DP at [27] said:
“While a decision of an Arbitrator may not concern an ‘award’ of compensation (as in Mawson [v Fletcher International Exports Pty Limited [2002] NSWWCCPD 5]), the appeal must nonetheless affect an ‘amount of compensation at issue on the appeal’ to pass the threshold test in section 352(2)(b). Purely procedural decisions, such as a decision to adjourn a telephone conference (Tagg v International Flavours and Fragrances (Australia) Ltd [2003] NSWWCCPD 5), a decision in relation to costs only (Grimson v Integral Energy [2003] NSWWCCPD 29), and a decision to schedule a further telephone conference (Falcon v Narellan Enterprises Pty Limited [2003] NSWWCCPD 34) do not meet this threshold criterion. The decision must have a real capacity to put the amount of compensation, determined by reference to the decision or the claim (Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSWWCCPD 3), in issue in the appeal (as in the case of the filing of a ‘Reply’ (ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCCPD 21)).” (emphasis added)
O’Callaghan v Energy World Corporation Ltd [2016] NSWWCCPD 1 involved an application by a worker to set aside consent orders for the payment of lump sum compensation, so that she could pursue a medical appeal pursuant to s 327(3)(a) of the 1998 Act. The worker sought to bring a Presidential appeal against a refusal by a Commission Arbitrator to set aside the Consent Orders. Roche DP referred to the above passage from Regan, and at [50]-[51] said:
“50. The Commission is concerned with the current claim and whether, in respect of that claim, the amount of ‘compensation at issue on the appeal’ is at least $5,000. That claim is not one for compensation but one that relates to the threshold for a potential work injury damages claim. As a result the monetary threshold cannot be met. (I note, in passing, that ‘damages’ does not include ‘compensation’ under the 1987 Act (s 149(1) of the 1987 Act).)
51. It is not to the point to say, as Mr McManamey has submitted, that if the s 352 appeal succeeds, and if the s 327 appeal succeeds, the new MAC will be the only certificate permitted by s 322A and will be binding for all purposes. Ms O’Callaghan has claimed no ‘compensation’ in the present proceedings, and given no notice of any intention to claim ‘compensation’. It follows that no ‘compensation is at issue on appeal’.” (emphasis added)
The orders sought by the appellant on the appeal are revocation of the Certificate of Determination dated 5 December 2016, and referral to an AMS “to assess WPI attributable to his secondary psychological condition for the purposes of s 32A”. If that assessment exceeded 20 per cent or 30 per cent, this would potentially increase the appellant’s entitlement to benefits under the Workers Compensation Acts, if he was otherwise entitled. There was no amount of compensation claimed before the Arbitrator, and there is no amount of compensation directly at issue on the appeal. If the appeal were to succeed, there would be no orders for the payment of compensation. In my view the threshold is not met. In the circumstances, no appeal lies pursuant to s 352, due to the application of s 352(3) of the 1998 Act.
It is appropriate that I deal with the substantive issue between the parties, in the event that I am wrong in the view I have reached on the threshold issue.
GROUNDS OF APPEAL
The appellant identifies two grounds of appeal:
(a) The Arbitrator erred in determining s 65A of the 1987 Act operated such that a dispute as to the degree of permanent impairment as a result of secondary psychological injury was incapable of referral to an AMS (Ground No 1).
(b) The Arbitrator erred in his determination of the operation of s 319 and s 326 of the 1998 Act with respect to the definition of a medical dispute (Ground No 2).
RELEVANT LEGISLATIVE PROVISIONS
The relevant definitions in s 32A of the 1987 Act provide:
“worker with high needs means a worker whose injury has resulted in permanent impairment and:
(a) the degree of permanent impairment has been assessed for the purposes of Division 4 to be more than 20%, or
(b) an assessment of the degree of permanent impairment is pending and has not been made because an approved medical specialist has declined to make the assessment on the basis that maximum medical improvement has not been reached and the degree of permanent impairment is not fully ascertainable, or
Note. Paragraph (b) no longer applies once the degree of permanent impairment has been assessed.
(c) the insurer is satisfied that the degree of permanent impairment is likely to be more than 20%,
and includes a worker with highest needs.
worker with highest needs means a worker whose injury has resulted in permanent impairment and:
(a) the degree of permanent impairment has been assessed for the purposes of Division 4 to be more than 30%, or
(b) an assessment of the degree of permanent impairment is pending and has not been made because an approved medical specialist has declined to make the assessment on the basis that maximum medical improvement has not been reached and the degree of permanent impairment is not fully ascertainable, or
Note. Paragraph (b) no longer applies once the degree of permanent impairment has been assessed.
(c) the insurer is satisfied that the degree of permanent impairment is likely to be more than 30%.”
Section 65 of the 1987 Act provides:
“Determination of degree of permanent impairment
(1) For the purposes of this Division, the degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.
(2) If a worker receives more than one injury arising out of the same incident, those injuries are together to be treated as one injury for the purposes of this Division.
Note. The injuries are to be compensated together, not as separate injuries. Section 322 of the 1998 Act requires the impairments that result from those injuries to be assessed together. Physical injuries and psychological/psychiatric injuries are not assessed together. See section 65A.
(3) If there is a dispute about the degree of permanent impairment of an injured worker, the Commission may not award permanent impairment compensation unless the degree of permanent impairment has been assessed by an approved medical specialist.”
Section 65A of the 1987 Act provides:
“65A Special provisions for psychological and psychiatric injury
(1) No compensation is payable under this Division in respect of permanent impairment that results from a secondary psychological injury.
(2) In assessing the degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury.
(3) No compensation is payable under this Division in respect of permanent impairment that results from a primary psychological injury unless the degree of permanent impairment resulting from the primary psychological injury is at least 15%.
Note. If more than one psychological injury arises out of the same incident, section 322 of the 1998 Act requires the injuries to be assessed together as one injury to determine the degree of permanent impairment.
(4) If a worker receives a primary psychological injury and a physical injury, arising out of the same incident, the worker is only entitled to receive compensation under this Division in respect of impairment resulting from one of those injuries, and for that purpose the following provisions apply:
(a) the degree of permanent impairment that results from the primary psychological injury is to be assessed separately from the degree of permanent impairment that results from the physical injury (despite section 65 (2)),
(b) the worker is entitled to receive compensation under this Division for impairment resulting from whichever injury results in the greater amount of compensation being payable to the worker under this Division (and is not entitled to receive compensation under this Division for impairment resulting from the other injury),
(c) the question of which injury results in the greater amount of compensation is, in default of agreement, to be determined by the Commission.
Note. If there is more than one physical injury those injuries will still be assessed together as one injury under section 322 of the 1998 Act, but separately from any psychological injury. Similarly, if there is more than one psychological injury those psychological injures will be assessed together as one injury, but separately from any physical injury.
(5) In this section:
primary psychological injury means a psychological injury that is not a secondary psychological injury.
psychological injury includes psychiatric injury.
secondary psychological injury means a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury.”
The definition of ‘medical dispute’ in s 319 of the 1998 Act provides:
“medical dispute means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim:
(a) the worker’s condition (including the worker’s prognosis, the aetiology of the condition, and the treatment proposed or provided),
(b) the worker’s fitness for employment,
(c) the degree of permanent impairment of the worker as a result of an injury,
(d) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion,
(e) the nature and extent of loss of hearing suffered by a worker,
(f) whether impairment is permanent,
(g) whether the degree of permanent impairment of the injured worker is fully ascertainable.”
Section 326 of the 1998 Act provides:
“Status of medical assessments
(1) An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned:
(a) the degree of permanent impairment of the worker as a result of an injury,
(b) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality,
(c) the nature and extent of loss of hearing suffered by a worker,
(d) whether impairment is permanent,
(e) whether the degree of permanent impairment is fully ascertainable.
(2) As to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings.”
Section 33 of the Interpretation Act 1987 (the Interpretation Act) provides:
“Regard to be had to purposes or objects of Acts and statutory rules
In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.”
Section 34 of the Interpretation Act relevantly provides:
“Use of extrinsic material in the interpretation of Acts and statutory rules
(1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:
(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or
(b) to determine the meaning of the provision:
(i) if the provision is ambiguous or obscure, or
(ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable.
(2) Without limiting the effect of subsection (1), the material that may be considered in the interpretation of a provision of an Act, or a statutory rule made under the Act, includes:
…
(f) the speech made to a House of Parliament by a Minister or other member of Parliament on the occasion of the moving by that Minister or member of a motion that the Bill for the Act be read a second time in that House,
…
(3) In determining whether consideration should be given to any material, or in considering the weight to be given to any material, regard shall be had, in addition to any other relevant matters, to:
(a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), and
(b) the need to avoid prolonging legal or other proceedings without compensating advantage.”
THE APPELLANT’S SUBMISSIONS
Ground No 1
The appellant refers to two passages from the second reading speech of the Honourable Greg Pearce, relating to the Workers Compensation Legislation Amendment Bill 2012 (2012 Amending Bill):
“The Workers Compensation Legislation Amendment Bill represents a fundamental shift towards properly meeting the needs of the most seriously injured workers in the scheme while strongly incentivising return to work for those workers who have the capacity to return to work. The Government is committed to ensuring that the income, support and treatment needs of seriously injured workers are met, and the bill will increase the weekly benefits paid to the most seriously injured workers while ensuring such workers have benefits until retirement if they cannot return to work. The Government is taking steps also to ensure insurers direct more resources to support injured workers to improve their return-to-work outcomes and will focus on reducing the costs of insurers, which also are impacting on the scheme.”
And:
“The bill provides for weekly payments to cease after five years with some important exceptions. This is in line with recommendation 7 of the parliamentary joint committee. There will be no time cap on benefits for those seriously injured workers who have been assessed at having a level of permanent impairment of over 30 per cent except for the Commonwealth retirement age, which is consistent with the scheme's support for seriously injured workers. Further, as recommended by the joint select committee there is provision for an intermediate category of workers who have a significant permanent disability. For workers with permanent impairment of more than 20 per cent the bill provides that weekly benefits will not cease after five years provided they have no capacity to work or have work capacity and are working 15 or more hours a week.”
The appellant also refers to the following passages from the second reading speech of the Honourable John Ajaka relating to the Workers Compensation Amendment Bill 2015 (2015 Amending Bill):
“The bill introduces new terminology for seriously injured workers who have more than 30 per cent whole person impairment.
Injured workers with a permanent impairment of over 30 per cent will now be known as ‘workers with highest needs’.
Workers who have more than 20 per cent whole person impairment will be referred to as ‘workers with high needs’.”
And:
“Benefit changes for the injured workers with high needs, those with greater than 20 per cent whole person impairment, include payment of medical expenses for life.”
The appellant submits:
“…the purpose or object of the definition contained in s 32A is to identify to an insurer, scheme agent or self-insurer that particular class of worker who fits within the definition such that benefits including most relevantly ongoing treatment needs could be managed under the Acts.”
The appellant submits that s 65A “does not say that there can be no assessment of permanent impairment simply that no compensation for permanent impairment can be paid [in respect of secondary psychological injury]”. The section “implicitly recognises that whole person impairment can arise from a secondary injury”. Section 65A(2) is not “a disentitling provision with respect to there being an assessment made with respect to what impairment resulted from a secondary psychological injury”.
Section 65 is submitted to be the “leading section of the Division” (Pt 3 Div 4 of the 1998 Act). Section 65 provides for assessment of the degree of permanent impairment resulting from injury; one then turns to ss 65A and 66 to determine what compensation is payable. Section 65A is a subordinate provision, which governs that proportion of the assessed permanent impairment for which compensation is payable. Section 65A delineates between physical, primary psychological and secondary psychological injury. To read s 65A as a disentitling provision is to have it “negate the operation of s 65 and the definitions seen in s 32A”, and constitutes error. A “purposive approach… would promote the purpose and objects of the Act”, which establishes “the ‘three tiered’ level or categories of injured workers” (injured workers, those of high needs and those of highest needs).
Ground No 2
The Arbitrator referred to Connor v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2006] NSWWCCPD 124; 5 DDCR 337 (Connor) in which Roche ADP (as he then was) at [43] said:
“The expression ‘as a result of an injury’ in section 326(1)(a) means ‘as a result of a compensable injury’. Whether an injury is compensable is to be determined by applying the provisions of the legislation and the relevant authorities to the facts as found by the Arbitrator at a hearing.”
The Arbitrator reasoned that the word ‘injury’ should have the same meaning in s 319(c) of the 1998 Act as in s 326(1)(a) of that Act, that is, ‘compensable injury’. He said “If no compensation is payable as a result of an injury, no dispute can exist as to the degree of permanent impairment of a worker as a result of an injury” (reasons at [33]). At [42] of the reasons the Arbitrator said:
“In my view the purpose of the insertion of the definitions of workers with high and highest needs in s 32A is to provide a higher level of benefits if the degree of permanent impairment of such a worker has been assessed for the purposes of Division 4 to be more than 20 per cent or 30 per cent as the case may be. It is not to provide for a worker who has sustained a secondary psychological injury and, in accordance with the provisions of the legislation, cannot be assessed in respect of any entitlement to compensation for non-economic loss as a result of such injury. It is not open to the Commission in this case to place a beneficial construction in favour of the injured worker in the legislation under discussion in this matter.”
The appellant submits that since the definitions were introduced into s 32A of the 1987 Act:
“compensation other than lump sum compensation is potentially payable with reference to the level of WPI be it for weekly compensation through to retirement age or medical expenses for the remainder of an injured worker with high need’s life.”
The appellant submits that the Arbitrator’s approach:
“…assumes the only compensation payable with reference to assessed WPI is non economic loss compensation where as submitted the assessment of WPI po[s]t the 2012 amendments is now relevant to entitlements to weekly compensation and medical treatment costs.”
THE RESPONDENT’S SUBMISSIONS
Ground No 1
Section 65A is contained in Div 4 Pt 3 of the 1987 Act. Subsection (1) provides that no compensation is “payable under this Division” (that is, no lump sum compensation) for secondary psychological injury. Subsection (3) provides that no compensation is payable “under this Division” for permanent impairment resulting from primary psychological injury, unless the degree of that permanent impairment “is at least 15%”. The respondent’s submissions at [4] continue:
“However, subsection (2) of s 65A, which is to the effect that in assessing physical or primary psychological injury ‘no regard is to be had to any impairment or symptoms resulting from secondary psychological injury’, omits the words ‘under this Division’. It follows that for any assessment under any other Division of the workers compensation legislation (see s 2A of the 1987 Act), no regard can be had to secondary psychological injury.”
The definitions in s 32A of the 1987 Act, of a worker with “high” or “highest” needs, refer to the degree of permanent impairment having been “assessed for the purposes of Division 4 [of Part 3]”. Section 65A(2) is in Pt 3 Div 4, and provides that “no regard is to be had to any impairment or symptoms resulting from secondary psychological injury”.
The respondent submits that the appellant’s submissions are contrary to the plain words of s 65A(2). A purposive reading under s 33 of the Interpretation Act aids in the construction of a provision, “[i]t does not supplant the plain reading of the words of a provision”. The appeal should fail.
Ground No 2
No regard can be had to secondary psychological injury. “[O]nce primary psychological injury has been determined, there is no further basis on which there can be a dispute.” The decision in Connor has not been overturned. It remains “an authoritative Presidential decision”. The Arbitrator was not required to decide the point in the last sentence of the reasons at [33]. “It is sufficient that the only medical dispute that can exist between the worker and the employer is as to the compensable injury found in the Medical Assessment Certificate, which cannot include secondary psychological injury.”
The appellant, in his submissions at [35], said that he suffered “a compensable injury and an agreed, compensable, secondary or consequential psychological condition”. The respondent submits that the description of an “agreed, compensable, secondary or consequential psychological condition” was “wrong”.
DISCUSSION
This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
The respondent issued s 74 notices dated 17 March 2014 and 17 September 2014, responding to an allegation by the appellant of ‘primary psychological injury’. In each of those notices the respondent disputed the allegation of primary psychological injury, and also raised the effect of the Amended Certificate of Determination dated 12 March 2012. Each of the notices stated:
“As the medical evidence currently available on your file indicates that your psychological injury arose secondary to your physical injury no amount is payable pursuant to section 65A(1) of the Workers Compensation Act 1987.”
The Amended Certificate of Determination dated 12 March 2012 provided by consent for an award for the respondent (employer) in respect of the claim for primary psychological injury. It also noted the agreement of the parties, to the payment of voluntary ongoing weekly compensation and medical expenses, in “respect of the injury of 8 December 2006 to the left and right upper extremities and secondary psychological injury”.
The definitions of ‘primary psychological injury’ and ‘secondary psychological injury’ are contained in s 65A of the 1987 Act. The appellant did not, in the current proceedings, argue that his psychological injury was other than secondary. The Amended Certificate of Determination dated 12 March 2012, and the two s 74 notices referred to above, are consistent with acceptance by the respondent of secondary psychological injury. The material before me does not include other documentation inconsistent with such acceptance. At the arbitration hearing in the current proceedings, both parties accepted the presence of a “secondary psychological condition” (T4.10, 7.23-4). The appellant’s submission at [35] was consistent with the above. It may be that the respondent’s reference to the submission being “wrong” was a reference to whether the psychological condition was “compensable” for the purposes of lump sum compensation.
Section 32A and Part 3 Division 4 of the 1987 Act
The definitions of a ‘worker with high needs’, and a ‘worker with highest needs’, in s 32A of the 1987 Act, in each instance require that “the degree of permanent impairment has been assessed for the purposes of Division 4”. Section 32A is in Pt 3 of the 1987 Act, and the reference is to Pt 3 Div 4 of that Act. Sections 65 and 65A form part of Div 4.
Section 65(1) of the 1987 Act provides:
“For the purposes of this Division, the degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act.”
The heading of Pt 3 Div 4 reads “Division 4 – Compensation for Non-Economic Loss”. The heading of the Division forms part of the Act: s 35(1) of the Interpretation Act.
The appellant, in his submissions before the Arbitrator, referred to the assessment process:
“[S]ection 65 says the degree of permanent impairment, subject to injury being determined by the Commission, is dealt with via the guidelines and via – via an approved medical specialist. That’s step one.” (T12.1-5)
Section 322(1) of the 1998 Act (which is in Ch 7 Pt 7 of that Act) provides:
“The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose.”
Section 331 of the 1998 Act (which is in Ch 7 Pt 7 of that Act) provides:
“Medical assessments, appeals and further assessments under this Part are subject to relevant provisions of the Workers Compensation Guidelines relating to the procedures for the referral of matters for assessment or appeal, the procedure on appeals and the procedure for assessments.”
The current edition of the Guidelines is the ‘NSW workers compensation guidelines for the evaluation of permanent impairment’, 4th ed, issued 1 April 2016 (the Guidelines). The Guidelines are issued pursuant to s 376 of the 1998 Act. The ‘Introduction’ to the Guidelines, at Part 2, sets out ‘Principles of Assessment’. Principles dealing with ‘Multiple impairments’ are set out at [1.17]-[1.20]. The ‘multiple impairments’ principles involving psychological injury, are dealt with at [1.19]. ‘Psychiatric and psychological injuries’ are dealt with at [1.21]-[1.22]:
“Multiple Impairments
1.19 The exception to this rule is in the case of psychiatric or psychological injuries. Where applicable, impairments arising from primary psychological and psychiatric injuries are to be assessed separately from the degree of impairment that results from any physical injuries arising out of the same incident. The results of the two assessments cannot be combined.”
“Psychiatric and psychological injuries
1.21 Psychiatric and psychological injuries in the NSW workers compensation system are defined as primary psychological and psychiatric injuries in which work was found to be a substantial contributing factor.
1.22 A primary psychiatric condition is distinguished from a secondary psychiatric or psychological condition, which arises as a consequence of, or secondary to, another work related condition (eg depression associated with a back injury). No permanent impairment assessment is to be made of secondary psychiatric and psychological impairments. As referenced in paragraph 1.19, impairments arising from primary psychological and psychiatric injuries are to be assessed separately from the degree of impairment that results from physical injuries arising out of the same incident. The results of the two assessments cannot be combined.”
Chapter 11 of the Guidelines includes detailed provision for the assessment of psychiatric impairment. The chapter at 11.3 includes:
“Permanent impairment assessments for psychiatric and psychological disorders are only required where the primary injury is a psychological one. The psychiatrist needs to confirm that the psychiatric diagnosis is the injured worker’s primary diagnosis.”
The Guidelines prohibit the making of a “permanent impairment assessment” of a secondary psychological impairment. If a secondary psychological injury was referred pursuant to Ch 7 Pt 7 for assessment, there is no provision in the Guidelines for such an assessment to occur.
The appellant submits that s 65A(1) “implicitly recognises that whole person impairment can arise from a secondary [psychological] injury”, as it provides that lump sum compensation is not payable in respect of such an impairment. He submits that s 65A(2) deals with assessment of the degree of permanent impairment in respect of “physical injury or primary psychological injury”, directing that such assessments have “no regard” to “impairment or symptoms resulting from a secondary psychological injury”. He submits that s 65A(2) is not a “disentitling provision”, going to whether assessment of permanent impairment in respect of secondary psychological injury can be made. He submits that s 65A does not bar such an assessment, but rather bars the recovery of lump sum compensation in respect of it.
The respondent submits that the appellant’s submissions are contrary to the plain words of
s 65A(2). Part 3 Div 4 of the 1987 Act deals with “Compensation for Non-Economic Loss”. Subsections (1) and (3) of s 65A state that no compensation is payable “under this Division” in respect of permanent impairment “that results from a secondary psychological injury” (subs (1)), or “that results from a primary psychological injury unless the degree of permanent impairment resulting from the primary psychological injury is at least 15%” (subs (3)). Section 65A(2), in contrast, provides:“In assessing the degree of permanent impairment that results from a physical injury or primary psychological injury, no regard is to be had to any impairment or symptoms resulting from a secondary psychological injury.”
The respondent submits that s 65A(2) is expressed more generally, its application is not restricted to whether “compensation is payable under this Division”. The respondent submits “[i]t follows that for any assessment under any other division of the workers compensation legislation (see s 2A of the 1987 Act), no regard can be had to secondary psychological injury”. Section 32A falls within Pt 3 Div 2 of the 1987 Act. The respondent submits that in assessing permanent impairment for the purposes of s 32A, no regard is to be had to any impairment resulting from secondary psychological injury. The respondent’s argument effectively is that s 65A(2) precludes having regard to permanent impairment resulting from secondary psychological injury for all purposes, where permanent impairment is a factor in the Workers Compensation Acts.
The relevant definitions in s 32A of the 1987 Act require assessment of the degree of permanent impairment “for the purposes of Division 4”. The subject matter of Pt 3 Div 4 is compensation for non-economic loss. This is consistent with the heading of the Division. In Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; 169 CLR 594 the High Court, dealing with the application of s 52 of the Trade Practices Act 1974 (Cth), had regard to the context and heading of Pt V of the Act, in which s 52 was to be found. The plurality at [8] said:
“…when the section is read in the context provided by other features of the Act, which is ‘An Act relating to certain Trade Practices’, the narrower (i.e. the second) of the alternative constructions of the requirement ‘in trade or commerce’ is the preferable one. Indeed, in the context of Pt V of the Act with its heading ‘Consumer Protection’, it is plain that s.52 was not intended to extend to all conduct, regardless of its nature, in which a corporation might engage in the course of, or for the purposes of, its overall trading or commercial business.”
The authors of Pearce & Geddes, Statutory Interpretation in Australia, 8th ed, after reviewing the authorities dealing with ‘Part and Division Headings’, referred to the following “summary of the law” in Ragless v Prospect District Council [1922] SASR 299 (Ragless) at 311:
“I think the rules [as to headings] may be stated thus:
1. If the language of the sections is clear, and is actually inconsistent with the headings, the headings must give way.
2. If the language of the sections is clear, but, although more general, is not inconsistent with the headings, the sections must be read subject to the headings.
3. If the language of the sections is doubtful or ambiguous, the meaning which is consistent with the headings must be adopted.”
The relevant definitions in s 32A of the 1987 Act require assessment “for the purposes of Division 4”. Section 65(1) (in Div 4) requires assessment “as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act”. Section 322(1) of the 1998 Act (in Pt 7 Ch 7) requires assessment “in accordance with Workers Compensation Guidelines (as in force at the time the assessment is made) issued for that purpose”. The effect of this chain of references, from one provision to another, is that the definitions in s 32A require assessment in accordance with the relevant Guidelines. These are referred to (in part) at [57]-[59] above.
In R v Tannous [2012] NSWCCA 243 (Tannous) Basten JA (Hall and Beech-Jones JJ agreeing) at [22]-[23] said:
“22. Although, as a general rule, a statute cannot be construed by reference to regulations made under it, there are circumstances where the statute itself establishes the structure of a scheme which is incomplete, absent relevant regulations. In such a case, it may be appropriate to have regard to the regulations in order to understand the scheme. That principle has been applied in relation to the sales tax legislation in Deputy Federal Commissioner of Taxation (SA) v Ellis & Clark Ltd [1934] HCA 54; 52 CLR 85 at 91-92 (Dixon J); Brayson Motors Pty Ltd (In Liq) v Federal Commissioner of Taxation [1985] HCA 20; 156 CLR 651 at 657 (Gibbs CJ, Mason, Wilson, Deane and Dawson JJ). This principle has not been restricted to tax cases, but was accepted in respect of the regulation of franchising under Pt IVB of the Trade Practices Act 1974 (Cth), which was read with the Trade Practices (Industry Codes - Franchising) Regulations 1998 (Cth): Master Education Services Pty Ltd v Ketchell[2008] HCA 38; 236 CLR 101 at [19] and [26] (Gummow ACJ, Kirby, Hayne, Crennan and Kiefel JJ).
23. In the present case, s 81 of the Administration Act was premised on the assumption that there would be regulations prescribing mandatory conditions of an intensive correction order and obliging the court to impose such conditions when making an order. In such circumstances, it may not be inappropriate to look to the regulations to understand the legislative scheme.”
Consideration
On the submissions, there are competing constructions going to the combined operation of the definitions in s 32A, and Pt 3 Div 4 of the 1987 Act.
The plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 at [47] said (excluding references):
“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.”
The general principles governing statutory construction were restated by French CJ and Hayne J in Certain Lloyd's Underwriters v Cross [2012] HCA 56; 248 CLR 378 at [23]-[26]. In Miles v SAS Trustee Corporation [2017] NSWCA 86 (Miles) Sackville AJA (Payne JA agreeing) at [53] said that there was “no dispute” about the application of these principles, his Honour saying (excluding references):
“For present purposes it is important to emphasise that the task of statutory construction begins with a consideration of the text itself. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the Act. Accordingly, the meaning of the text may require consideration of the context, including the general purpose and policy of a provision. However, the purpose of a statute “resides in its text and structure”. Moreover, the purpose of legislation must be derived from what the legislation says, not from any assumption about what is thought to be a desirable result.”
The threshold provisions in the s 32A definitions, for a ‘worker with high needs’ and a ‘worker with highest needs’, require that the worker “has been assessed for the purposes of Division 4”. The provisions in Pt 3 Div 4 are directed to “compensation for non-economic loss”. The heading of the Division, which forms part of the Act, is consistent with this. There were various amendments to Pt 3 Div 4 associated with the commencement of the Workers Compensation Legislation Amendment Act 2012 (the 2012 Amending Act). A number of these simply reflected the repeal of s 67 of the 1987 Act, which previously provided for compensation for pain and suffering. There were significant amendments to s 66 of the 1987 Act in the 2012 Amending Act. The various amendments went to entitlement to compensation for non-economic loss.
The definition of a ‘seriously injured worker’ (subsequently replaced by the definition of a ‘worker with highest needs’) was introduced in the 2012 Amending Act. The definition was like that for a ‘worker with highest needs’, and at (a) provided “the degree of permanent impairment has been assessed for the purposes of Division 4 to be more than 30%”. There were not corresponding amendments to Pt 3 Div 4 at that time, which had any apparent relationship to the fact that Div 4 (from that time on) provided a method of assessment of whether an individual was a ‘seriously injured worker’. Pt 3 Div 4 continued, as it had been, as a Division which dealt with entitlement to lump sum compensation. The definitions in s 32A required assessment on that basis.
In my view the preferable construction, of the relevant definitions in s 32A, is that assessment “for the purposes of Division 4” involves assessment consistent with the process of assessment of permanent impairment for the recovery of compensation for non-economic loss. Such a construction is consistent with the text – the purposes of Div 4 are consistent with assessment for the recovery of non-economic loss compensation.
The construction is consistent with the heading of Pt 3 Div 4, “Compensation for Non-Economic Loss”, which forms part of the text of the Act. I do not regard the language of the relevant definitions in s 32A, and Pt 3 Div 4, as being “doubtful or ambiguous”. If it were, then such a construction is consistent with the heading of Pt 3 Div 4 (see the third of the ‘rules” identified in Ragless at [64] above).
Additionally, the 1987 and 1998 Acts establish the structure of a scheme for the assessment of permanent impairment, which is incomplete in the absence of the relevant Workers Compensation Guidelines. It is legitimate to have regard to the Guidelines, “in order to understand the scheme” (see the passage from Tannous quoted at [66] above). The scheme, viewed in this context, is one that makes no provision for the assessment of permanent impairment, in respect of a secondary psychological condition (see the parts of the Guidelines quoted at [57]-[58] above). If the order for referral sought by the appellant were made, there would be no basis in the Guidelines for assessment of permanent impairment, in respect of the secondary psychological condition, to occur. Yet the scheme is one in which “the assessment of the degree of permanent impairment of an injured worker … is to be made in accordance with the Workers Compensation Guidelines”: s 322(1) of the 1998 Act. The structure of the scheme is inconsistent with the proposition that permanent impairment can be assessed in respect of secondary psychological injury.
In Ackling v QBE Insurance (Australia) Limited [2009] NSWSC 881; 75 NSWLR 482 Johnson J, dealing with the construction of the Motor Accidents Compensation Act 1999, at [83] said (excluding references):
“Although the limits of jurisdiction to be exercised by Medical Assessors are to be determined by the construction of the MAC Act itself, the Permanent Impairment Guidelines are not irrelevant to this task. Those Guidelines may be characterised as delegated legislation under s.44(1)(c) MAC Act. As delegated legislation, the Guidelines cannot affect the proper construction of the MAC Act, and they exist to indicate how relevant assessments are generally carried out. With these qualifications in mind, I observe, nevertheless, that cl.1.4-1.6 of the Permanent Impairment Guidelines fortify the conclusion that the determination as to whether an injury is caused by the relevant motor accident lies within the medical assessment jurisdiction provided for in Part 3.4 MAC Act.”
At the least, the relevant Workers Compensation Guidelines are consistent with and fortify the view I have reached, going to the construction of the definitions in s 32A of the 1987 Act, and the nature of the permanent impairment assessment required “for the purposes of Division 4”.
Section 65A(1) of the 1987 Act (which is in Pt 3 Div 4) provides that compensation is not payable under Div 4 “in respect of permanent impairment that results from a secondary psychological injury”. On the construction I have reached, if the appellant’s permanent impairment is assessed “for the purposes of Div 4”, such an assessment includes application of s 65A(1), which is part of that Division. To have regard to any permanent impairment resulting from the secondary psychological injury, similarly, is precluded by s 65A(2) of the 1987 Act. It follows that an assessment of permanent impairment in respect of the secondary psychological condition is precluded by s 65A of the 1987 Act.
The appellant, arguing to the contrary, refers to the second reading speeches relating to the 2012 and 2015 Amending Bills. The material relied on in relation to the 2015 Amending Bill goes essentially to the change of terminology, with the introduction of the terms “worker of high needs” and “worker of highest needs”. The material relating to the 2012 Amending Bill refers to “…a fundamental shift towards properly meeting the needs of the most seriously injured workers in the scheme” (see the material quoted at [32] and [33] above). The appellant submits at [9] that the purpose of the definitions in s 32A was to identify the class in which an injured worker fits, “such that benefits including most relevantly ongoing treatment needs could be managed”.
The respondent, at [7] of its submissions, accepts that “one of the purposes of the 2012 amending legislation was to ensure that those workers who suffered serious whole person impairment were provided with greater security”. The respondent goes on to submit that this was by reference to levels of permanent impairment, and the appellant is a “less seriously injured worker”, because his impairment is assessed not taking account of the secondary psychological injury. It submits the appellant’s submissions are contrary to s 65A(2). The respondent submits that a purposive reading under s 33 of the Interpretation Act, for which the appellant argues, is only an aid to construction, it does “not supplant the plain reading of the words of a provision”.
Section 34(2)(f) of the Interpretation Act provides that a second reading speech is material that “may be considered in the interpretation of a provision of an Act, or a statutory rule made under the Act”. Consideration may be given to a second reading speech for the purposes set out in s 34(1) of the Interpretation Act. It can be used “to confirm that the meaning of the provision is the ordinary meaning conveyed by the text”. It can only be used to “determine the meaning of the provision” if “the provision is ambiguous or obscure”, or “if the ordinary meaning conveyed by the text… leads to a result that is manifestly absurd or is unreasonable”.
In Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380 (Harrison) Spigelman CJ at [12] said:
“I wish to express my agreement with the analysis by Mason P of the House of Lords judgment in Pepper v Hart [1992] UKHL 3; [1993] AC 593. Statements of intention as to the meaning of words by ministers in a Second Reading Speech, let alone other statements in parliamentary speeches are virtually never useful. Relevantly, in my opinion, they are rarely, if ever, ‘capable of assisting in the ascertainment of the meaning of the provisions’ within s 34(1) of the Interpretation Act 1987. I only refrain from using the word ‘never’ to allow for a truly exceptional case, which I am not at present able to envisage.”
In Amaca Pty Ltd v Novek [2009] NSWCA 50 (Novek) Campbell JA (Giles and Tobias JJA agreeing) at [78] said:
“Section 34 empowers a court to consider extrinsic material only in circumstances where that extrinsic material 'is capable of assisting in the ascertainment of the meaning of the provision'. The court must decide whether that precondition for use of extrinsic material is satisfied concerning the particular disputed statutory provision involved in the case being decided and the particular item of extrinsic evidence involved in the case being decided. Given the fundamental difference that there is between the intention that a Minister has in promoting a particular legislative measure or the Minister's understanding of how that provision will operate in practice, on the one hand, and the meaning of the provision on the other, a court may well find, concerning the construction of the particular statutory provision in question and the particular Second Reading Speech in question, that all or part of the speech is not capable of assisting in the ascertainment of the meaning of the provision.”
Campbell JA (Tobias and Young JJA agreeing) in Preston v Commissioner for Fair Trading [2011] NSWCA 40 at [169]-[175] discussed and applied the above passages from Harrison and Novek, in declining to place reliance on second reading speeches in that matter. Sackville AJA (Payne JA agreeing) in Miles at [89], referred to the above passage from Harrison, and observed that “[s]ome courts have expressed considerable scepticism about using statements in second reading speeches to assist in reading questions of statutory construction”. His Honour in the circumstances of that case said that “the Minister’s observations do not assist on the question of construction” (at [93]).
In the current matter, there is an issue going to the interpretation of the relevant definitions in s 32A of the 1987 Act, and the application of s 65A of that Act. More particularly, the issue goes to whether permanent impairment can be appropriately assessed in the circumstances, in respect of secondary psychological injury. That is not a topic on which the passages from the second reading speeches, relied upon by the appellant, assist. Additionally, the relevant provisions are not in my view “ambiguous or obscure”, nor does “the ordinary meaning conveyed by the text lead” to a result “that is manifestly absurd or is unreasonable”. As the respondent submits, s 33 of the Interpretation Act can only be an aid to construction, it “does not supplant the plain reading of the words of a provision”.
It follows from the above that I do not accept the appellant’s argument based on ss 33 and 34 of the Interpretation Act.
The above is sufficient to deal with the issue between the parties, going to whether an assessment of permanent impairment in respect of secondary psychological injury is available in the circumstances. It is unnecessary to deal with ground no 2.
DECISION
The appeal cannot be brought as the monetary thresholds in s 352(3) of the 1998 Act are not satisfied, and there is no right of appeal.
Michael Snell
Deputy President
31 May 2017
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