ANZ Banking Group Limited v F
[2004] NSWWCCPD 91
•21 December 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:ANZ Banking Group Limited v Ferraz [2004] NSW WCC PD 91
APPELLANT: ANZ Banking Group Limited
RESPONDENT: Debra Gaye Ferraz
INSURER:ANZ Banking Group Limited
FILE NUMBER: WCC3994A-2004 and WCC3994B-2004
DATE OF ARBITRATOR’S DECISION: 1 September 2004, 23 November 2004
DATE OF APPEAL DECISION: 21 December 2004
SUBJECT MATTER OF DECISION: Validity of a Notice issued under section 54 of the Workplace Injury Management and Workers Compensation Act 1998; clause 40A of the Workers Compensation Regulation 1995; jurisdiction of the Commission.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Deputy President
HEARING:24 November 2004, 1 December 2004
REPRESENTATION: Appellant: Leigh Virtue & Associates Solicitors
Respondent: Shead Lawyers
ORDERS MADE ON APPEAL: The decisions of the Arbitrator, dated 1 September 2004 and 23 November 2004 are revoked.
The matter is remitted to the Arbitrator to be determined in accordance with these reasons.
THE APPEAL
On 1 March 2004 Debra Ferraz lodged an ‘Application to Resolve a Dispute’ in the Commission claiming ongoing weekly benefits compensation and medical expenses for an injury to her neck and right arm. Ms Ferraz claimed that her injury occurred on 22 October 1993 due to the repetitive nature of her data entry work for ANZ Banking Group Limited.
ANZ paid Ms Ferraz weekly compensation benefits and medical expenses from the time of her injury until 29 September 2003. ANZ denied liability for the claim on 19 August 2003.
This matter has been the subject of two decisions by an Arbitrator, and consequently two Certificates of Determination, issued on 1 September 2004 and 23 November 2004 respectively.
On 1 September 2004 the Arbitrator determined that the Bank failed to issue a valid notice in accordance with section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). On 24 September 2004 the Commission received an appeal from ANZ against that decision.
On 23 November 2004 the Arbitrator determined that the Commission had no jurisdiction to determine the application and that it should be ‘struck out’. On 30 November 2004 Ms Ferraz lodged an appeal against this decision.
Leave to appeal is granted in both matters.
THE PARTIES’ SUBMISSIONS
The parties have agreed that both appeals should be dealt with together.
The parties are in agreement that the Arbitrator’s decisions of 1 September 2004 and 23 November 2004 should be revoked. They have also jointly submitted that the matter should be remitted to the Arbitrator so that the substantive dispute may be determined on its merits. Neither party now takes issue with the question of whether effective notices had been issued to Ms Ferraz pursuant to section 54 of the Workers Compensation Act 1987 (the 1987 Act) or section 74 of the 1998 Act.
ANZ argue that the Arbitrator was wrong in her determination of 1 September 2004 in asserting that it was required to comply with, or alternatively, did not comply with, the requirements of section 74 of the 1998 Act and clause 34 of the Workers Compensation (General) Regulation 1995.
Ms Ferraz argues that the Arbitrator was wrong to strike out the matter on 23 November 2004 for want of jurisdiction. Ms Ferraz argues that the Arbitrator should have made orders as to her entitlements under the workers compensation acts. As no such orders were made Ms Ferraz submits that she has no enforcement procedure to recover arrears of ongoing weekly compensation and medical expenses since 29 September 2003.
FINDINGS AND REASONS
Before an Arbitrator’s decision is set aside, it must be established that the Arbitrator has made an error of law, fact or discretion in the determination, such that the decision has not been arrived at fairly and lawfully. The parties in these appeals have made submissions, which from my reading of the two carefully drafted decisions of the Arbitrator, were not put to the Arbitrator at first instance.
The reasons dated 1 September 2004 refer to submissions by both parties on the question of whether a proper notice had been served on Ms Ferraz, pursuant to section 74 of the Workplace Injury Management and Workers Compensation Act 1998. This was an issue raised by Ms Ferraz’s legal representatives and argued before the Arbitrator.
The Arbitrator duly made a decision on that issue and issued it to the parties. This gave rise to ANZ’s appeal.
The Arbitrator then went on to find that she had no jurisdiction to hear the dispute. This later decision gave rise to Ms Ferraz’s appeal. On appeal, both parties are dissatisfied with the consequences of the decisions. In my view, the possible consequences of the decision of 1 September 2004 should have been better canvassed in argument before the Arbitrator made the decision. It remains that Ms Ferraz is not receiving benefits to which she claims an entitlement and ANZ is unclear as to what is their obligation, if any, to continue to make workers compensation payments to her.
Both parties want the substantive dispute about Ms Ferraz’s entitlement determined. To this end their legal representatives gave undertakings at the hearing of the appeal that preliminary issues revolving around the adequacy of statutory notices were no longer contested. Nor is there any dispute as to whether the Arbitrator has jurisdiction to hear and determine Ms Ferraz’s application. This matter could have been resolved much sooner had the substantive merit of Ms Ferraz’s claim for ongoing workers compensation benefits been thoroughly argued by the parties before the Arbitrator.
Did the Arbitrator Make an Error?
I am satisfied that the Arbitrator has erred in finding that she had no jurisdiction to hear the application. I am also satisfied that the Arbitrator erred in purporting to ‘strike out’ the application.
The Arbitrator found that ANZ had failed to issue a notice in compliance with section 74 of the 1998 Act. However she did not also consider the requirements for a Notice to be served under section 54 notice (of the 1987 Act). A section 54 notice is required, among other things, when a worker has been receiving weekly payments of compensation for a continuous period of at least 12 weeks. This was the situation with Ms Ferraz, who had been receiving weekly payments of compensation for ten years until they were terminated in September 2003.
Both parties submitted, on appeal, that it was a section 54 notice (of the 1987 Act) that should have been given to Ms Ferraz. Both parties were also agreed that the notice of 19 August 2003 satisfied this requirement. I note that these were not the submissions that were made to the Arbitrator. The requirement for a notice to be given in section 54 of the 1987 Act is not dependent upon a formal denial of liability by the employer nor is it dependent upon whether a notice has been given under section 74 of the 1998 Act.
The Arbitrator referred to the Court of Appeal decision of Esler Services Pty Ltd v Dulhunty [2000] NSWCA 349. In that case Giles JA, with whom Mason P agreed, found that an ‘effective’ notice under section 54 must be given, i.e. a notice that complies with the requirements of that section and the relevant Regulations. The consequence of a defective notice is that the entitlement to compensation is not properly terminated (see also the discussion of relevant cases in Goundar v Warren’s Motor Village Pty Ltd (2002) 24 NSW CCR 594 at 605).
However the effect of a failure to give proper notice under section 54 of the 1987 Act is not to deny the Commission jurisdiction over any subsequent dispute. To accept this submission would be to potentially deny the worker, whose benefits are wrongfully discontinued, from a remedy, in terms of an application to the Commission. This is what has occurred in this case, namely the worker has no enforceable order in relation to her entitlements and the insurer denies a legal obligation to continue or resume payments. The Arbitrator, in her reasons, refers to the decision of Deputy President Byron in Zamovisa Pty Ltd v Kavanagh [2004] NSW WCC PD 53. I note in that decision the issue of whether a ‘defective’ section 54 notice denied the Commission jurisdiction to hear a subsequent dispute was not discussed. The Arbitrator had found the notice to be defective, but continued to hear the substantive dispute and make an award in favour of the worker. The section 54 argument revolved around the question of a denial of procedural fairness to the Appellant in addressing the Arbitrator on the issue.
Having decided that the Commission had no jurisdiction to hear Ms Ferraz’s application the Arbitrator purported to make an order to ‘strike out’ the matter pursuant to the Workers Compensation Commission Rules 2003. The exercise of the power to strike out a claim is dependent upon non-compliance with the Rules. Rule 6(4) provides that:
“If a provision of these rules is not complied with in relation to the commencement (or purported commencement) of proceedings or conduct of proceedings, the Commission may determine that the proceedings are, or any step taken in the proceedings is, a nullity, in which case the Commission may strike out the proceedings or any such step.”
The Arbitrator has not identified any failure to comply with the Commission’s Rules. It is also not clear from the brief statement by the Arbitrator whether he made a determination that the proceedings are a nullity in, in accordance with Rule 6(4). Such a determination is a prerequisite to striking out the claim (Morgan v Hacken Pty Limited previously known as Jennifer McGregor Enterprise Limited [2004] NSW WCC PD 83). In the absence of such a determination, a failure to comply with the Rules is to be treated as an irregularity, only.
Future Conduct
In view of the findings set out above it remains for the Arbitrator to determine Ms Ferraz’s substantive claim. This determination will obviously take into account the effectiveness or the section 54 notice and ANZ’s liability, if any, for ongoing payments of workers compensation to Ms Ferraz.
Both parties now seek to have the substantive dispute determined by the Arbitrator. In these circumstances I propose to revoke the Arbitrator’s decisions of 1 September 2004 and 23 November 2004 and remit the matter to be determined on the substantive issues, in accordance with these reasons.
DECISION
The decisions of the Arbitrator, dated 1 September 2004 and 23 November 2004 are revoked. The matter is remitted to the Arbitrator to be determined in accordance with these reasons
Dr Gabriel Fleming
Deputy President
21 December 2004
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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