Aston Partners Pty Ltd v Workers Compensation Nominal Insurer (iCare)
[2025] NSWPIC 58
•19 February 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Aston Partners Pty Ltd v Workers Compensation Nominal Insurer (iCare) & Anor [2025] NSWPIC 58 |
| APPLICANT: | Aston Partners Pty Ltd |
| FIRST RESPONDENT: | Workers Compensation Nominal Insurer (iCare) |
| SECOND RESPONDENT: | Lu (Stella) Han |
| SENIOR MEMBER: | Kerry Haddock |
| DATE OF DECISION: | 19 February 2025 |
CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; application by employer pursuant to section 145; notice withdrawn by first respondent; applicant maintained that Commission had jurisdiction and sought determination of the matter; consideration of Raniere Nominees Pty Ltd t/as Horizon Motor Lodge v Daley and Another, Widdup v Hamilton, Ballantyne v WorkCover Authority of NSW, and Project Blue Sky v Australian Broadcasting Authority; Held – applicant seeking declaration; Commission does not have power to make declaration; proceedings dismissed. |
| DETERMINATIONS MADE: | The Commission determines: 1. The proceedings are dismissed, pursuant to s 54(b) of the Personal Injury Commission Act2020. A brief statement is attached setting out the Commission’s reasons for the determination. |
STATEMENT OF REASONS
BACKGROUND
The second respondent, Ms Lu (Stella) Han (Ms Han), was employed by Aston Partners Pty Ltd (the applicant) as a mortgage broker assistant.
The applicant was at the relevant time uninsured for workers compensation.
As her employer was uninsured, Ms Han made on the first respondent, Workers Compensation Nominal Insurer (iCare), a claim for compensation as a result of a psychological injury, the date of which has been accepted by iCare as 9 May 2023.
On 12 June 2024, iCare issued the applicant with a notice pursuant to s 145 of the Workers Compensation Act 1987 (the 1987 Act) (the notice), seeking reimbursement of the sum of $43,609.67 paid to or on behalf of Ms Han. The notice stated that the date of injury was 9 May 2023.
On 8 July 2024, the applicant lodged a Miscellaneous Application (the Application), seeking an order that reimbursement of the compensation referred to in the notice was not required, or in the alternative, an order that the amount be reduced. The Application did not name Ms Han as a respondent.
The first respondent lodged its Reply on 29 July 2024.
The second respondent lodged her Reply on 13 September 2024.
ISSUES FOR DETERMINATION
The parties agree that the following issue remains in dispute:
(a) whether there is any issue that the Personal Injury Commission (the Commission) may determine.
PROCEDURE BEFORE THE COMMISSION
The matter was listed for preliminary conference on 5 August 2024. Mr Macken appeared for the applicant. Mr Ainsworth appeared for the first respondent. Mr Butcher of iCare also attended.
Directions were made to join Ms Han as the second respondent, for service of the pleadings on her, and the applicant was granted leave to issue Directions for Production.
The matter was listed for further preliminary conference on 16 September 2024. Mr Macken appeared for the applicant. Mr Ainsworth appeared for the first respondent. Ms Petkovic appeared for the second respondent, who was present. Ms Merchant of iCare also attended.
Directions were made for further conduct of the matter, and it was listed for further preliminary conference on 18 October 2024. Mr Macken appeared for the applicant. Mr Ainsworth appeared for the first respondent. Mr Barter of counsel, instructed by Ms Petkovic, appeared for the second respondent, who was present. Mr Butcher also attended.
Mr Ainsworth advised that the applicant had raised an issue with the date, or deemed date, of the second respondent’s injury. The first respondent was seeking a supplementary report from independent medical examiner Dr Gerald Chew. Depending on the opinion expressed by Dr Chew, the first respondent may withdraw the notice.
As this and other matters remained outstanding, the matter was listed for further preliminary conference on 18 November 2024. Mr Macken appeared for the applicant. Mr Ainsworth appeared for the first respondent. Mr Barter, instructed by Ms Petkovic, appeared for the second respondent, who was present.
Mr Ainsworth confirmed that the first respondent had withdrawn the notice. He submitted that the Commission therefore did not have jurisdiction to determine the matter. The second respondent supported that submission.
Mr Macken submitted that the Commission had jurisdiction, and the applicant wanted the matter determined. It maintained that the notice had the wrong date of injury.
The applicant and the first respondent were directed to lodge written submissions on the issue of jurisdiction, as a preliminary issue. The second respondent did not wish to be heard on this issue.
A timetable was set for the provision of submissions by the applicant and the first respondent. The parties were advised that at the conclusion of the time allowed for submissions, the issue would be determined “on the papers”.
It was agreed that, should it be determined that the Commission had jurisdiction, the matter would be listed for further preliminary conference for directions.
The applicant’s submissions are dated 27 November 2024, but were lodged on 7 February 2025 after enquiries were made by a member of the Commission’s staff. They had previously been served on the first respondent, which had lodged submissions in reply.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application and attached documents;
(b) first respondent’s Reply and attached documents;
(c) second respondent's Reply and attached documents, and
(d) Application to Admit Late Documents dated 13 November 2024 and attached document, lodged by the first respondent.
Oral evidence
There was no application to call oral evidence or cross-examine any witness.
FINDINGS AND REASONS
In view of the limited issue to be determined, it is unnecessary that all of the evidence be discussed in these reasons.
Evidence of the second respondent, Lu (Stella) Han
Ms Han’s statement is dated 22 January 2024.
Ms Han developed a psychological injury “due to bullying in the workplace”.
The second respondent’s work situation began to take a toll on her physically. On 9 May 2023, she went to work, but began to feel dizzy and could not breathe.
Ms Han told David Chan, an associate director, that she was not feeling well and wanted to work from home. Mr Chan permitted her to do so, and she left for the day.
Ms Han began consulting her general practitioner and went to the Emergency Department at Hornsby Hospital.
Ms Han continued to attend work until 19 September 2023, when she felt unwell and again requested to work from home. She left the office and had not returned.
It is assumed that, as Ms Han left work feeling unwell on 9 May 2023, that is the reason for the date being accepted by iCare as the date of injury.
Evidence of Dr Gerald Chew – psychiatrist
Dr Chew reported to iCare on 6 March 2024. He has recorded the date of the second respondent’s injury as 9 May 2023, which is assumed to be the date provided by iCare.
Dr Chew recorded a history that bullying from the second respondent’s “boss” happened in the first week or so. She began to feel extremely stressed and anxious at work. Her job was also extremely busy.
Dr Chew diagnosed the second respondent with an adjustment disorder, which he attributed directly to the workplace injury, that resulted directly as a response to Ms Han’s perception of bullying.
SUBMISSIONS
The parties have provided written submissions, which remain with the Commission’s file. I will therefore refer to the main points of the submissions.
First respondent
The first respondent submitted that it had withdrawn the notice on 13 November 2024 and there is no issue that the Commission may determine.
The first respondent referred to s 105(1) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), and the decision of the Court of Appeal in Raniere Nominees Pty Ltd (t/as Horizon Motor Lodge) v Daley and Another.[1]
[1] [2006] NSWCA 235 at [66] (Raniere Nominees).
The first respondent submitted that the Commission is not a court, citing the decision in Orellana-Fuentes v Standard Knitting Mill Pty Ltd.[2] It also referred to the more recent Court of Appeal decision in Kanajenahalli v State of New South Wales (Western New South Wales Local Health District).[3]
[2] [2003] NSWCA 146.
[3] [2023] NSWCA 202.
The first respondent submitted that the [Workers Compensation] Commission had recognised the limitations of its jurisdiction, in, inter alia, Widdup v Hamilton.[4]
[4] [2006] NSWWCCPD 258 (Widdup).
The first respondent referred to the statutory analysis of s 145 of the 1987 Act by Basten JA in Ballantyne v WorkCover Authority of NSW.[5]
[5] [2007] NSWCA 239 at [78] (Ballantyne).
The first respondent submitted that, in the absence of the notice, the Commission had no power to hear and make a determination in these proceedings. Any order could only be declaratory, and therefore was not one the Commission has the power to make.
In reply to the applicant, the first respondent submitted that its power to issue a notice is discretionary. It “may” issue a notice.
The first respondent submitted that, per s 9 of the Interpretation Act 1987, “the word ‘may’, if used to confer a power, indicates that the power may be exercised or not, at discretion”. (Emphasis in original.) By withdrawing the notice, it has exercised its discretion not to exercise the power.
The first respondent submitted it would be a fetter on the discretion granted by s 145(1) of the 1987 Act to say that it may not withdraw a notice issued pursuant to that section.
Contrary to the applicant’s submission, the first respondent submitted there would need to be a provision preventing the withdrawal of a discretionary notice, and not one permitting a withdrawal. (Emphasis in original.)
The first respondent submitted the Commission’s power is to make a determination in respect of the “payment concerned”. The notice having been withdrawn, there is no “payment concerned”. Sub-section 145(3) of the 1987 Act cannot be read in isolation from the rest of the section or without regard to the purposes of the section.[6]
[6] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 (Project Blue Sky).
As regards the applicant’s submission as to costs, the first respondent submitted the submission is not pertinent to the issue of whether there is a matter before the Commission that it may determine.
The first respondent submitted that the absence of a power to award costs thrown away by the applicant, in light of its withdrawal of the notice, does not give the Commission power to make a determination in relation to a notice that has been withdrawn. This is an appeal to consequences.
Applicant
The applicant agreed with the first respondent that the Commission’s jurisdiction is identified in s 105 of the 1998 Act.
The applicant submitted the Application was made in accordance with s 145(3) of the 1987 Act and is therefore a matter that is clearly within the Commission’s jurisdiction, a notice having been issued in accordance with s 145(1) of the Act.
The applicant submitted that s 145 of the 1987 Act makes no provision for the notice to be withdrawn. It follows that the Commission’s jurisdiction is enlivened when a notice is issued, and an Application is filed.
The applicant submitted that, contrary to the first respondent's submissions, the applicant does not seek a declaratory order or declaratory relief, “but rather seeks orders precisely within the terms of the Statute.”
The applicant submitted it was open to the first respondent to agree that the amount sought in the notice is not recoverable. In the absence of such an agreement, the applicant is entitled to a determination from the Commission.
The applicant finally submitted that it had been put to substantial expense and costs associated with the Application. The Commission does not have the power to remedy this matter by a costs order, and there is no agreement that the first respondent pay those costs. The applicant should not be put in a position where costs are wasted by reason of the Commission not proceeding to exercise its jurisdiction in respect of the notice.
SUMMARY
Section 145 of the 1987 Act provides:
“145 EMPLOYER OR INSURER TO REIMBURSE INSURANCE FUND
(cf former s 18C (21)-(26))
(1) The Nominal Insurer may serve on a person who, in the opinion of the Nominal Insurer, was--
(a) in respect of an injured worker to or in respect of whom a payment has been made by the Nominal Insurer in respect of a claim under this Division, an employer at the relevant time, or
(b) an insurer under this Act of such an employer,
a notice requiring that person, within a period specified in the notice, to reimburse the Insurance Fund an amount (not being an amount exceeding the amount of the payment made) specified in the notice.
(2) The Nominal Insurer may, by instrument in writing, waive the liability of an employer under subsection (1) to reimburse the Insurance Fund an amount, if the Nominal Insurer, in respect of the amount, is satisfied that--
(a) the amount is beyond the capacity of the employer to pay,
(b) the employer could not reasonably have been expected to regard himself or herself as an employer at the relevant time,
(c) the employer, not being a corporation, is bankrupt and the liability under this section is not provable in the bankruptcy,
(d) the employer, being a corporation, is being wound up and the liability under this section is not provable in the winding up,
(e) the employer, being a corporation, has been dissolved, or
(f) it would not be commercially feasible for the Nominal Insurer to attempt to recover the amount.
(3) A person on whom a notice has been served under subsection (1) in respect of an injured worker may, within the period specified in the notice, apply to the Commission for a determination as to the person's liability in respect of the payment concerned.
(4) The Commission may hear any such application and may--
(a) make such determination in relation to the application, and
(b) make such awards or orders as to the payment of compensation under this Act to or in respect of the injured worker concerned, as the Commission thinks fit.
(4A) The Commission is not authorised to make a determination that waives the liability of an employer under subsection (1) to reimburse the Insurance Fund or that limits or otherwise affects any function of the Nominal Insurer to decide whether or not any such liability should be waived.
(5) In any proceedings under subsection (4), a certificate executed by the Nominal Insurer and certifying that--
(a) the payments specified in the certificate were paid to or in respect of an injured worker named in the certificate, and
(b) a person named in the certificate was, in the opinion of the Nominal Insurer, liable at the relevant time to pay to or in respect of the injured worker compensation under this Act or work injury damages,
is (without proof of its execution by the Nominal Insurer) admissible in evidence in any proceedings and is evidence of the matters stated in the certificate.
(6) The Nominal Insurer may recover an amount specified in a notice served under subsection (1) (being a notice in respect of which an application has not been made under subsection (3)) from the person to whom the notice was given as a debt in a court of competent jurisdiction.
(7) An order by the Commission that the Nominal Insurer is to be reimbursed by a person named in the determination concerned may be enforced under section 59 of the Personal Injury Commission Act 2020 .”
Section 105 of the 1998 Act provides:
“105 JURISDICTION OF COMMISSION AND COMPENSATION COURT
(1) Subject to this Act, the Commission has exclusive jurisdiction to examine, hear and determine all matters arising under this Act and the 1987 Act.
(2) The Commission does not have that jurisdiction in respect of matters arising under Part 5 (Common law remedies) of the 1987 Act except for the purposes of and in connection with the operation of Part 6 of Chapter 7 of this Act.
(3) The Commission does not have jurisdiction in respect of matters that the Compensation Court or (after the repeal of the Compensation Court Act 1984) the District Court has jurisdiction to examine, hear and determine.
(4) Subject to this Act and the Compensation Court Act 1984, the Compensation Court has exclusive jurisdiction to examine, hear and determine all existing claim matters except matters arising under Part 5 of the 1987 Act.
(4A) After the repeal of the Compensation Court Act 1984, the District Court has exclusive jurisdiction to examine, hear and determine all coal miner matters (except matters arising under Part 5 of the 1987 Act).
(5) Despite section 17 (4) of the Compensation Court Act 1984, the Compensation Court does not have jurisdiction to reconsider a matter, or to rescind, alter or amend any decision previously made or given by the Court in relation to a matter, once the matter has become a new claim matter.
(6) For the purposes of giving effect to subsections (4) and (4A), references in this Act to the Commission are to be read as references--
(a) to the Compensation Court, to the extent that the reference relates to a matter that the Compensation Court has jurisdiction to examine, hear and determine, or
(b) to the District Court, to the extent that the reference relates to a matter that the District Court has jurisdiction to examine, hear and determine.
Note--: Provision is made in the 1987 Act for regulations to require existing claims to be treated as new claims (‘transferred claims’ ). The Compensation Court ceases to have jurisdiction in respect of transferred claim matters and the Commission acquires exclusive jurisdiction in respect of transferred claim matters.”
The starting point in iCare seeking reimbursement, pursuant to s 145 of the 1987 Act, of payments it has made to or on behalf of a worker, is the issue of a notice pursuant to s 145(1)(a) of the Act.
In this case, the first respondent issued the applicant with a notice on 12 June 2024.
The applicant exercised its right, pursuant to s 145(3) of the 1987 Act, to apply to the Commission for a determination as to its liability in respect of “the payment concerned”.
Pursuant to s 145(4) of the 1987 Act, the Commission therefore had jurisdiction to hear the Application, and make such determination in relation to the Application, and such awards or orders as it thought fit.
The first respondent withdrew the notice on 13 November 2024.
In Raniere Nominees, Santow JA said (at [66]):
“Section 105 of the WIM Act sets out the jurisdiction of the Commission. Thus in acting judicially in its decision-making, the Commission is governed by statute. It does not possess an inherent jurisdiction but only such powers which are incidental and necessary to the exercise of its statutory jurisdiction; see DJL v Central Authority. It has no statutory power expressly permitting it to extend the time for the employer to make application under s 145(3). I do not consider that use of the word ‘may’ in s 145(3) does so impliedly; the section is an enabling one so that ‘may’ in effect means ‘must’.” (Citation omitted).
In Widdup, President Sheahan referred to the above comments of Santow JA in Raniere Nominees.
President Sheahan said (at [35]):
“This Commission is not a court, and does not have any of the powers formally [sic] set out in section 15 of the (repealed) [Compensation] Court Act. In particular, it does not have the power to punish persons guilty of ‘contempt, or of disobedience to any order made’”.
President Sheahan held in Widdup that the Workers Compensation Commission did not have the power to make a declaration of liability.
The first respondent referred to the analysis of s 145 of the 1987 Act by Basten JA in Ballantyne (at [78]). His honour said:
“(1) The purpose of Part 4, Division 6 is to ensure that a worker’s statutory rights to compensation are not compromised in circumstances where his or her employer is uninsured (or unidentifiable).
(2) A payment made by the Authority, which may be the subject of a notice under sub-s (1), is, relevantly for present purposes, a payment of ‘compensation in accordance with this Act’, made pursuant to s 143(1)(a) or pursuant to an award or order by the Commission, made under s 144(3).
(3) The notice served under s 145(1) will give rise to a debt enforceable in a court of competent jurisdiction, pursuant to sub-s (6), subject to two qualifications.
(4) The first qualification is that, if satisfied of one of the matters identified in paras (a)-(f) of sub-s (2), the liability to make such payment may be waived by the Authority by instrument in writing.
(5) The second qualification is that the person served with the notice may dispute his or her liability in respect of the payment concerned, by a timely application to the Commission for a determination of the liability.
(6) In determining an application under sub-s (3), pursuant to the power conferred by sub-s (4)(a), the function of the Commission is to determine whether the payment made by the Authority was in fact a payment of ‘compensation in accordance with this Act’, which would otherwise have been payable by the employer or its insurer, and also, if the matter were in issue, to determine whether the person served was indeed the relevant employer or insurer of such employer.
(7) If satisfied as to the amount of the payment concerned and the identity of the employer, the Commission would ordinarily make whatever order it thought appropriate to dispose of the application according to law. As now envisaged by sub-s (7), the appropriate order would be that the person served with the notice pay the amount to the Authority by way of reimbursement of the WorkCover Authority Fund, within a specified time.”
At [80], Basten JA said the following:
“…there is little doubt that the term ‘liability’, as found in s 145, is to be understood as a legal liability, that is a liability enforceable by law. In each sub-section, the term is used in relation to an amount of money and thus refers to a legally enforceable liability to pay the relevant amount.”
Further, at [106], Basten JA said:
“…Consistently with Raniere Nominees (No.2) the powers of the Commission are conferred for the sole purpose of determining an application made under sub-s (3), as it is ‘any such application’ which the Commission is empowered to hear and determine, and no other. That application must be one as to the ‘liability in respect of the payment concerned’, being a liability of the person served with a notice under sub-s (1) in respect of a payment identified as having been made by the Authority to or in respect of an injured worker…”
I do not accept the applicant’s submission that the first respondent may not withdraw a notice it has issued pursuant to s 145(1) of the 1987 Act.
As the first respondent submits, the power granted to it to issue a notice is discretionary. By withdrawing the notice, it has exercised its discretion not to exert that power.
The Commission is governed by statute. As Santow JA said in Raniere Nominees, the Commission does not possess an inherent jurisdiction, but only such powers that are incidental and necessary to the exercise of its statutory jurisdiction.
It had been held that the Commission does not have the power to provide declaratory relief.
The applicant submitted that it is not seeking declaratory relief, but “orders precisely within the terms of the Statute”.
Section 145(3) of the 1987 Act provides the applicant may apply to the Commission for a determination of its liability “in respect of the payment concerned.” The notice having been withdrawn by the first respondent (which in my view it was entitled to do), there is no “payment concerned”.
Section 145(3) of the 1987 Act should not be considered in isolation from the rest of the section, or without regard to the purpose of the section.
In Project Blue Sky, McHugh, Gummow, Kirby and Hayne JJ said:
“[t]he 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 statute” and the “meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’.”
Section 145 of the 1987 Act, when viewed in its entirety, provides that the Nominal Insurer may recover from an employer the payments it has made under the statutory scheme, and the manner in which an employer may seek that the Commission determine whether those payments, or part thereof, are properly recoverable.
When it is read with reference to the language of s 145 as a whole, s 145(3) does not provide that an employer, once served with a notice, is entitled to seek a determination from the Commission of its liability, even if the notice has been withdrawn. The notice in this matter has been withdrawn. The applicant no longer has a liability pursuant to that notice.
There is no issue between the parties that the Commission must determine. What the applicant is seeking is in effect a declaration as to its liability, which the Commission has no power to make.
As for the submission that the applicant has been put to costs and expense, that is not relevant to the issue I must decide.
The order is set out in the Certificate of Determination.
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